DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243984); DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243922)

1. [1]

   There are two proceedings between the same parties. The first one is DLAW Pty Ltd trading as Doyles Construction Lawyers v CROFT DEVELOPMENTS Pty (2025/243922). It seeks judicial review against the manager, costs assessment. The second proceeding is DLAW Pty Ltd trading as Doyles Construction Lawyers v CROFT DEVELOPMENTS Pty Ltd (2025/243984). It seeks a judicial review of the costs assessor’s ruling. As they raise the same issues, this judgment covers both proceedings.

2. [2]

   In both proceedings, the plaintiff is DLAW Pty Ltd (the law practice). It is represented by Houston Lawyers. The principal lawyer of both entities, DLAW Pty Ltd and Houston Lawyers, is James Patrick Doyle, a legal practitioner. The first defendant is Croft Developments Pty Ltd (Croft Developments). It is represented by Philippe Doyle Gray of counsel. Croft Developments Pty Ltd was acting as trustee. The proceedings correctly named Croft Developments Pty Ltd ABN 37064274684 AFT Croft Developments Unit Trust ABN 51326340371. For convenience and without intending any disrespect, I will refer to the first defendant as Croft Developments. Croft Developments is a former client of the law practice.

3. [3]

   The law practice relied upon two affidavits one dated 4 August 2025 by Natalia Petukhova and the other dated 15 August 2025 by Tara O’Connell. Croft Developments relied upon two affidavits: one by Amal Witnish dated 15 August 2025 and another one by Minh Nguyen dated 16 August 2025. The latter affidavit was filed on 16 August 2025 and handed over in Court on the morning of the hearing.

4. [4]

   The second defendant in the first proceeding (2025/243922) is the manager of the costs assessment (the manager, costs assessment). The second defendant for the second proceeding (2025/243984) is Bruce Bentley (the costs assessor). They both filed submitting appearances save as to costs.

5. [5]

   At the conclusion of the hearing, I made a decision that the law practice failed on both issues, namely discovery and stay of proceedings. I informed the parties that I would provide my reasons later. The reasons are as follows.

Issues

1. [6]

   There are two interlocutory issues to be heard:

   1. (1)

      whether the manager, costs assessment should, following leave being granted, be ordered to give discovery for the narrow categories; and

   2. (2)

      whether the cost assessors should be stayed pending further or final orders of the Court.

2. [7]

   In the proceedings bearing case number 2025/243922, the law practice moved on pars 2 and 3 of its Motion filed 4 August 2025, seeking discovery from the manager, costs assessment. In these proceedings, Croft Developments made no submissions.

3. [8]

   The law practice moved on par 4 of its Motion filed 4 August 2025 in 2025/243984, seeking a stay of costs assessment proceedings between the law practice and Croft Developments. Croft Developments submitted a stay should be refused.

Leave to file amended summonses

1. [9]

   At the outset of the hearing, the law practice sought leave to file an amended summons in each proceeding. Both summonses do no more than state the remedies sought. Some of those remedies appear to take issue with one or more decisions taken by the manager, costs assessment, or the costs assessor.

2. [10]

   Croft Developments submitted that the proposed amended summonses:

   1. (1)

      fail to identify the decision;

   2. (2)

      fail to identify what decision the law practice seeks in place of that decision below; and

   3. (3)

      fail to state the grounds relied on in support of the appeal.

3. [11]

   After examining the proposed amended summonses, I agree with Croft Developments’ submissions that the amended summonses failed to identify the decision, identify what the decision the law practice seeks in place of each decision below and failed to state the grounds relied upon in support of each appeal. In other words, to the extent that proposed amended summons are appeal against a decision by either the manager, costs assessment or the costs assessor, there has not been compliance with r 50.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). At the hearing, I refused to grant leave to file these proposed amended summonses.

The costs assessment so far

1. [12]

   The law practice invoiced Croft Developments about $356,000. Croft Developments had paid that in full.

2. [13]

   On 8 November 2024, Croft Developments filed an application for costs assessment. Croft Developments asserts that it was overcharged by the law practice, and the fair and reasonable legal costs should be about $100,000. One of Croft Developments’ principal objections was that there was unnecessary duplication of work leading to confusion and increased charges for no good reason.

3. [14]

   The manager, costs assessment assigned the application for costs assessment to the costs assessor.

4. [15]

   On 23 April 2025, 6 months after the application for costs was filed, the law practice issued a further invoice, for about $139,000. Croft Developments sought to have the further invoice be considered by the costs assessor.

5. [16]

   On 15 May 2025, Croft Developments filed an amended application for costs assessment. The only material difference was to include the additional further invoice in the sum of $139,000.

6. [17]

   On 26 June 2025, the law practice commenced two sets of proceedings concerning its grievances, one with the manager, costs assessment and the other one with the costs assessor in relation to the execution of their respective statutory duties.

7. [18]

   On 11 August 2025, the law practice issued a further invoice, for about $1,700. The law practice sent the invoice directly to the costs assessor but not to the former client as is customary. Croft Developments has not yet decided what to do about this invoice.

Discovery

1. [19]

   Rule 21.2 of the UCPR governs the court’s power to make an order for discovery, it reads:

2. [20]

   The orders sought in proceedings numbered 2025/243984 in relation to the manager, costs assessment, are as follows:

   1. (1)

      Pursuant to UCPR r 59.7(4), leave be granted to the law practice to seek discovery.

   2. (2)

      Upon leave being granted, pursuant to UCPR r 21.2(1)(a), the manager is to give discovery of the categories of documents listed below:

3. [21]

   The law practice seeks declarations as to the conduct of the costs assessment before the costs assessor.

4. [22]

   The law practice submitted that to seek the declaration as to the conduct of the costs assessor, it will need to prove matters within the knowledge of the manager, costs assessment and presumably evidenced by documents in his records. They have sought those records on a number of occasions: 25 June 2025; 7 July 2025; 14 July 2025; 17 July 2025 and 23 July 2025.

5. [23]

   Despite request for the documents, it has not been provided on the basis that without a Court order their representatives the Crown Solicitors take the view that the documents do not need to be provided relying on an incorrect interpretation of R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 where it was held:

6. [24]

   The law practice asserted that the High Court made clear that the challenged tribunal had a clear role to play and to avoid compromising the position in respect of future conduct of the cost application.

7. [25]

   The manager, costs assessment is a model litigant who must comply with its obligations and in particular with the comments summarised in the article by G Appleby, “The Government as Litigant” (2014) 37(1) UNSW Law Journal, 94 at 96-97 and 101 (footnotes omitted). These comments have been extracted below:

8. [26]

   The content of the duty of a model litigant includes the following (G Appleby, “The Government as Litigant” at 107-108):

   1. (1)

      complying with time limits in legislation or in a court order to ensure expeditious conduct of and disposal of litigation;

   2. (2)

      not adducing late evidence, or withholding evidence until the commencement of the hearing;

   3. (3)

      providing assistance to the court and not simply submitting to the order of the court;

   4. (4)

      adducing evidence relevant to the matter even if that evidence would substantiate the case of the other party; and

   5. (5)

      providing accurate responses to factual inquiries from the other party’s solicitors.

9. [27]

   In this case the obligation to produce the documents should have been evident from the nature of the declarations sought.

10. [28]

    A submitting appearance submits to the orders of the court and should have included a disclosure of documents that were evidently essential to the Court’s convenient disposal of the issues in the proceedings.

11. [29]

    Having been asked for the documents since 25 June 2025, the second defendants alleged that the cost assessor must continue, but refer to no authority and effectively adopt a process inconsistent with the submitting appearance by “charging ahead”. This can only result in wasted work and prejudice the Court’s consideration of the issues before the Court.

12. [30]

    This is highlighted when on 18 July 2025, 21 days after service when the second defendants were expected under r 59.6 of the UCPR to indicate a position in respect of the summons and to file that response, the matter was adjourned for three weeks with a submitting appearance filed by the second defendants.

13. [31]

    During that period, one should have been able to expect that no further steps would be taken.

14. [32]

    In essence, the law practice submitted that a submitting appearance should not be a cover for “charging forward”.

15. [33]

    In the letter dated 31 July 2024 from the Crown Solicitor’s office, the position of the two second defendants was outlined as follows:

16. [34]

    The law practice submitted that is an incorrect position by a challenged tribunal or administrator and ignores the duty of all parties to assist the court and the second defendants to act as model litigants.

Resolution

1. [35]

   The costs assessor who is currently conducting a costs assessment under the Legal Professional Uniform Law (LPUL) and the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULA Act) has notified the parties that he will take no further action until this judgment is delivered.

2. [36]

   It is my view that the manager, costs assessment, while exercising his statutory power under the LPUL, is obliged to comply with that legislation. There is no statutory provision in the LPUL to empower the manager, costs assessment to provide discovery.

3. [37]

   In any event, if I am wrong and the Notice of Motion is considered a proceeding (which it is not), UCPR r 21.2 does not apply, because documents sought from the manager, costs assessment do not relate to any facts in issue relevant to the determination of the costs assessment.

4. [38]

   For these reasons, the application for discovery is misconceived and should be dismissed.

Stay of proceedings

1. [39]

   The law practice seeks a stay of proceedings against the costs assessor in proceedings number 2025/243984 on the following ground:

   1. (1)

      The costs assessment under Assessment Number 2024/004224922, including both the original and amended applications, be stayed pending further order or final determination of these proceedings

2. [40]

   Section 67 of the CPA reads as follows:

3. [41]

   The law practice submitted that at the costs assessor’s suggestion, the amended application for assessment of costs was then forwarded to the manager, costs assessment without the law practice’s knowledge and without being accompanied by any fee and without being referred to the Law practice as required by the mandatory process required by r 34 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (LPULAR). The stay is sought to:

   1. (1)

      preserve the neutrality and availability of the tribunal;

   2. (2)

      avoid the waste of time and effort depending on the result;

   3. (3)

      avoid the distraction of multiple proceedings proceeding simultaneously; and

   4. (4)

      there is no prejudice in the delay of the cost assessment which cannot be compensated by interest.

4. [42]

   Finally, the balance of convenience is heavily in favour of having the Court’s directions prior to the cost assessment continuing.

5. [43]

   Regulation 34 of the LPULAR states:

6. [44]

   The law practice’s written submissions dated 13 August 2025 set out two particular grievances the law practice has with the manager, costs assessment being that he:

   1. (1)

      did not charge Croft Developments a fee when accepting the amended application, and

   2. (2)

      did not serve it on the law practice.

7. [45]

   The evidence on this Motion is:

   1. (1)

      the manager, costs assessment charged Croft Developments the prescribed fee when accepting the amended application, and that fee was paid, and

   2. (2)

      the law practice (and the costs assessor) has been served, albeit by Croft Developments instead of by the manager, costs assessment.

8. [46]

   Insofar as the law practice alleges that the application, without its knowledge, was accepted by the manager, costs assessment without any fee and without being referred to the law practice, these allegations are incorrect. Croft Developments paid the correct filing fee with the application for costs assessment and an additional fee for the higher sum claimed in the amended application (see affidavit by Amal Witnish dated 15 August 2025 at pages 30-38).

9. [47]

   On 15 May 2025, Ms Prasad’s assistant emailed the sealed amended application for assessment of costs to Mr Doyle (see affidavit by Amal Withnish at p 37). On 5 June 2025, Mr Doyle sent a letter to the costs assessor acknowledging the sealed amended application. The law practice has not provided any evidence to the effect that it was not served the amended application by the manager.

10. [48]

    So, as a matter of fact, these grounds for a stay have no substance.

11. [49]

    The law practice did not identify any power for the court to grant a stay of the costs assessment. Croft Developments submits there is no power.

12. [50]

    This Court has power to grant a stay of any proceedings before it under CPA s 67. However, the law practice has not identified any authority that might tend to suggest that a costs assessment constitutes “proceedings” within s 67, let alone “proceedings before [the Court]”.

13. [51]

    In Nano Logistics Pty Ltd v Harper James Law Group Pty Ltd [2024] NSWSC 251 (Nano Logistics), Chen J declined to stay the issue of a certificate of determination (the last step in a costs assessment), because the issuing of that certificate was not a “proceeding” within the meaning of s 67: Nano Logistics at [30]-[32].

14. [52]

    To the extent—as here—the law practice sought to void the costs assessment without making an appeal to the Court under s 89 of the LPULA Act, Chen J held there is no power for this Court to make any order to that effect: Nano Logistics at [35].

15. [53]

    On at least 2 other occasions besides Nano Logistics, this Court has either summarily dismissed or dismissed similar proceedings.

16. [54]

    In Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750 (Griffith), a party to an ongoing costs assessment commenced proceedings commenced by summons seeking declarations about issues to be decided (note that future tense) by the costs assessor. Beech-Jones J summarily dismissed the proceedings in 3 steps, his Honour:

    1. (1)

       at [47] accepted that the proceedings involve the invocation of the declaratory jurisdiction of the Court in circumstances where there is a full scheme of merits and judicial review available to the law practice that will enable him to obtain a determination of all the issues and fact and law he wants to raise;

    2. (2)

       at [53] held the starting position is that it is Parliament’s assessment that the appropriate forum to decide these issues is via costs; and

    3. (3)

       at [53]-[54], his Honour found costs assessment should not be interfered with by the continuation of these proceedings because all the points the law practice wishes to raise can be determined via that statutory scheme.

17. [55]

    In Griffith, the precise legislation was the former costs assessment scheme, but Croft Developments submitted nothing in the changes to the legislation warrants a different result here.

18. [56]

    In Johnston v Boyd [2023] NSWSC 194 (Johnston), a party to a costs assessment commenced proceedings by summons seeking declarations about issues that had been decided (note that past tense) by the costs assessor. The summons in Johnston sought a similar series of declarations as here. Fagan J dismissed the proceedings after a final hearing in 3 steps like those in Griffith. In Johnston, Fagan J

    1. (1)

       at [33] held the circumstances raised at the outset the question whether the Court’s discretion should be exercised against granting relief by way of judicial review, assuming that a denial of procedural fairness could be made out in favour of the law practice, relief in circumstances where the law practice did not apply for a review of the costs assessor’s determination by a review panel pursuant to the LPULA Act;

    2. (2)

       at [36]-[38] held the law practice’s entitlement, as of right, to have a rehearing by a review panel and thereafter to pursue one of the alternative appeals from the panel’s decision to a court are specific forms of recourse created by the same Act that provides for the original assessment and that requires it to be undertaken with procedural fairness, which is a feature noted as important to enlivening the discretion not to interfere in the statutory; and

    3. (3)

       at [39]-[40] found costs assessment should not be interfered with as the facts before him favoured exclusivity of the review panel process and there were no countervailing facts at paragraphs [39]-[40].

19. [57]

    It is difficult to see how this Court has a power to grant a stay when it is doubtful the Court has a power to grant the relief sought.

20. [58]

    Once upon a time, it was settled law, whether to grant a stay by exercising the power conferred by CPA s 67 required a discretionary judgment. On 1 November 2023, the High Court of Australia changed that settled law.

21. [59]

    The exercise of that s 67 power now requires an evaluative judgment.

22. [60]

    The question of whether this Court should grant a stay is capable of only one correct answer and the choice is binary: either yes or no. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (adopted from Cizek & Mihov [2024] FedCFamC1A 151 per Austin J at [86]).

23. [61]

    In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ), the High Court allowed an appeal from the exercise of that s 67 power, overturning the New South Wales Court of Appeal who had granted a stay. The primary judge’s decision refusing a stay sought, as here, on a Notice of Motion, was restored.

24. [62]

    In separate judgments, all 5 judges agreed that exercise of that s 67 power requires an evaluative judgment: Kiefel CJ, Gageler, and Jagot JJ at [15]–[16], [23]–[28]; Steward J at [89], [90], [95], and [96]; Gleeson J at [161].

25. [63]

    In GLJ, the majority decided the correct evaluative judgment was that a stay should be refused, and on this aspect they differed from Steward and Gleeson JJ who decided the correct evaluative judgment was that a stay should be granted. All 5 judges, however, used the same method when deciding the correct evaluative judgment: identify the material facts giving rise to the binary question.

26. [64]

    The material facts giving rise to the binary question whether to grant a stay are

    1. (1)

       whether the law practice's two grievances have substance, and

    2. (2)

       whether the Court has a power to grant the relief sought, to which the stay is a means to an end.

27. [65]

    For reasons already stated, the law practice's 2 grievances have no substance and the Court has no power to grant the relief sought on the evidence before it.

28. [66]

    These are not Motions for summarily dismissal. This is not a final hearing. It might turn out, at the final hearing, the Court has power to grant the relief sought on the evidence before it at that time. But we are dealing with an application for a stay now, on evidence presented now.

29. [67]

    So, the binary question becomes: should a stay be granted of the costs assessment when the law practice's grievances have no substance and when the Court has no power to grant the final relief sought on the evidence before it?

30. [68]

    The answer to that binary question is that a stay of the costs assessment should be refused, because there is no reason why the costs assessment should not proceed to conclusion in accordance with Griffith at [44]-[46].

31. [69]

    In reply, the law practice’s legal representative referred to the above decisions and made submissions as to why they should not be followed. None of them were persuasive.

32. [70]

    Further the law practice referred to Gilles v Palmieri [2018] NSWSC 350 (Gilles) where I made a decision in the nature of certiorari removing to the Court the decision of the costs assessor in matter number 2016/242676 made on 26 June 2017 and quashing that decision.

33. [71]

    In Gilles, the matter that was remitted to the manager of costs assessment to be dealt with according to law at [71]:

34. [72]

    Gilles is based on different facts where the costs assessor decided not to proceed with the costs assessment. That determination was found to be incorrect. In these current proceedings before me, the costs assessor has decided to not take any further steps until my decision is handed down.

35. [73]

    The facts in Gilles differ. In the current application for a stay of proceedings, there is no direction that if complied with would lead to an assessment of costs continuing on the wrong basis. By not proceeding with the cost assessment, it would put this law practice to a great deal of unnecessary work and expense.

36. [74]

    The law practice also relied on Griffith at [31]-[32] which cited the decision of Davies AJ in Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; 51 NSWLR 333 at [31]:

37. [75]

    The decision of Davies AJ was based on very different facts and not applicable here.

38. [76]

    As in Griffith, Johnson and Nano Logistics, it is my view that there are no proceedings before the court. These authorities made it clear that a determination of a costs assessment is not a proceeding. As stated in Griffith, the starting point is that it is Parliament’s assessment that the appropriate forum to decide these issues is via that statutory mechanisms that have been created. It is my view that the costs assessment should be finalised without any interference by this Court. For these reasons, I decline to grant a stay of proceedings.

39. [77]

    Paragraph [4] of the law practice’s Motion filed 4 August 2025 is dismissed with costs.

Result

1. [78]

   I dismiss pars [2] and [3] of the law practice’s Motion filed 4 August 2025 in 2025/243922, seeking discovery from the manager, cost assessment.

2. [79]

   I dismiss par [4] of the law practice’s Motion filed 4 August 2025 in 2025/243984, seeking a stay of costs assessment proceedings between the law practice and Croft Developments.

Costs

1. [80]

   The law practice submitted that costs of the Notice of Motion be costs in the cause. Croft Developments seeks that their costs be paid on an indemnity basis.

2. [81]

   Costs are discretionary. Normally, costs follow the event see UCPR r 42.1. There is no reason to depart from the normal rule. The plaintiff is to pay the defendant’s costs. The issue is whether the defendant’s costs should be paid by the plaintiff on an indemnity basis.

The law on indemnity costs

1. [82]

   The starting point in relation to costs is s 98 of the Civil Procedure Act 2005 (NSW) (CPA), which relevantly reads:

2. [83]

   Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.1 states:

3. [84]

   A court should only depart from the general rule and award indemnity costs where the conduct of the party against whom the order is sought is plainly unreasonable: see Sydney City Council v Geftlick [2006] NSWCA 280 at [90] (per Tobias JA, Mason P and Hodgson JA agreeing). Indemnity costs orders should be reserved for the most unreasonable action by an unsuccessful plaintiff: see Leichhardt Municipal Council v Green per Santow JA at [57].

4. [85]

   Those costs should be as agreed or assessed on the indemnity basis for several reasons:

   1. (1)

      Croft Developments alerted the law practice to the decision of Griffith and called for the law practice to identify the real issues by way of how Griffith could be overcome, to which the law practice has provided no reply, not even when making submissions on this Motion (see affidavit of Minh Nguyen made 16 August 2025 at pars [3] and [4] on page 2, and pars [13]–[17] on page 9).

   2. (2)

      The law practice's submissions are devoid of authority. It has fallen to the defendant to cite Griffith, Johnston, Nano Logistics, and GLJ.

   3. (3)

      The law practice has bombarded Croft Developments with multiple, defective summonses in beach of UCPR r 50.4.

5. [86]

   The law practice has peppered Croft Developments with duplicate affidavits for no good reason, without even the courtesy of a covering letter informing Croft Developments’ solicitor, Ms Nguyen, they are duplicates, forcing her to review the documents page-by-page (see affidavit of Minh Nguyen made 16 August 2025 at pars [5]–[7], and [14]–[17]).

6. [87]

   The law practice has served evidence after close of business on Friday, 15 August 2025, in breach of the Court’s timetable, without any warning and without any apparent need, requiring Ms Nguyen and Croft Developments’ counsel to urgently work after business hours on Friday and Saturday (see affidavit of Minh Nguyen made 16 August 2025 at par [1]).

Resolution

1. [88]

   Costs are discretionary. Normally, costs follow the event.

2. [89]

   The law practice is to pay Croft Developments’ costs. As to whether the law practice should pay Croft Developments’ costs on an indemnity basis, it is a borderline decision. Both of the law practice’s applications are misconceived. But overall I am not satisfied on the balance of probabilities that the misconceived applications amount to the most unreasonable action by the law practice. On this basis, I decline to award costs on an indemnity basis.

   1. (1)

      I dismiss pars 2 and 3 of the plaintiff’s Motion filed 4 August 2025 in 2025/243922, seeking discovery from the manager, costs assessment.

   2. (2)

      I dismiss par 4 of the plaintiff’s Motion filed 4 August 2025 in 2025/243984 seeking a stay of costs assessment proceedings.

   3. (3)

      The plaintiff is to pay the defendant’s costs in relation to the applications made in both Notices of Motion on an ordinary basis.