DLAW Pty Ltd v Croft Developments Pty Ltd

1. [1]

   HIS HONOUR: This is the determination of proceedings that were commenced by the filing of a summons on 26 June 2025 by a legal practice (DLaw Pty Ltd) trading as Doyles Construction Lawyers (“Doyles”). The principal of the practice is James Doyle, who appears for the plaintiff, instructed by Houstons and Associates (“Houstons”). The first defendant, Croft Developments Pty Ltd (“Croft”), retained Doyles to act for it between September 2021 and February 2024 in proceedings in the Supreme Court of Western Australia that were finalised by the making of orders by consent on 7 December 2023. Doyles issued 28 invoices to Croft, the first dated 6 October 2021, and then monthly (sometimes twice monthly) from August 2022 until 31 January 2024, totalling $356,725.53, which Croft paid as they fell due.

2. [2]

   On 12 November 2024, pursuant to s 198 of the Legal Profession Uniform Law (NSW) (the LPUL Act), Croft, through different solicitors (“Croft’s solicitors”), filed an application for the assessment of costs that it had paid to Doyles, submitting that the correct total bill should have been $100,502.49, which was a difference of $256,223.04 (“the original costs application”). Croft paid the filing fee, which was calculated pursuant to cl 33(1)(c) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the Regulations) (since repealed) as 1% of the costs in dispute: $2,562.23. The Manager, Costs Assessment (“the Manager”), who is the second defendant, accepted the application and assigned it to an Assessor, Bruce Bentley (“the Assessor”). The matter was given an assessment case number: 2024/00422492 (“costs assessment 492”).

3. [3]

   On 14 November 2024, Croft’s solicitors forwarded a copy of the original costs application to Houstons. On 9 December 2024, Houstons wrote to the Manager, submitting that the application was an abuse of process. It is unnecessary for the purpose of the instant proceedings to canvass this issue or certain other issues that Houstons has raised in relation to the original costs application and assessment process.

4. [4]

   The Assessor wrote to the parties by letter dated 6 January 2025, attaching a copy of the original costs application. Correspondence between Houstons and the Assessor then ensued in which Doyles raised further issues as to whether the costs assessment could occur. In the course of that correspondence, on 18 February 2025, the Assessor referred to ss 193 and 198(3) of the LPUL Act (relevantly extracted at [19*] below) and stated:

5. [5]

   By letter dated 13 January 2025 (but not forwarded by email until 18 March 2025), Houstons informed the Assessor that it had not yet issued a final bill, stating:

6. [6]

   By letter dated 14 April 2025, the Assessor wrote to Houstons, directing Doyles to issue its final tax invoice to Croft and provide him with a copy within 7 days.

7. [7]

   By letter dated 23 April 2025, Houstons wrote to the Assessor attaching “a final bill under protest”. The letter annexing the invoiced stated:

8. [8]

   This invoice was for the sum of $139,095.00 (“the April 2025 invoice”), which I note was three times more than the highest monthly invoice forwarded and paid over the period of the retainer. It included counsel’s invoice, dated 17 March 2025, for the sum of $1,595.00 including GST, which was for a half-hour teleconference with Doyles on 2 February 2023 ($145.00 ex GST) and a review of “brief, comments on draft statement of claim” on 9 March 2023 ($1,305.00 ex GST). The difference ($125,000.00 ex GST) was for work done by Doyles, itemised as:

9. [9]

   By email dated 24 April 2025, Croft’s solicitors wrote to Houstons, copied to the Assessor:

10. [10]

    In letters dated 12 and 13 May 2025, the Assessor explained to the parties how the April 2025 invoice impacted his assessment, which was expressed succinctly in his letter of 13 May 2025 as follows:

11. [11]

    Croft’s solicitors sought to file an amended application in costs assessment 492 by forwarding it to the Assessor as an attachment to an email dated 13 May 2025, that was copied to Houstons. The only amendment was the addition of the final invoice of $139,095.00 to the costs for assessment (“the May 2025 filing”). The Assessor replied the same day, copied to Houstons:

12. [12]

    On 15 May 2025, Croft’s solicitors wrote to Houstons: “Please find enclosed by way of service an amended application for cost assessment. Please confirm acceptance of service.”

13. [13]

    Croft paid the difference in the lodgement fee, which was $1,390.95, on 21 May 2025. On 4 June 2025, the Assessor wrote to the parties, stating:

14. [14]

    On 5 June, Houstons wrote to the Assessor, stating:

15. [15]

    By a letter dated 11 August 2025, Houstons issued to Croft a further invoice (“the August 2025 invoice”) in the sum of $1,760.00 (incl GST), incurred on 30 September 2021, being: “Fees for document perusals … less the amounts already claimed in previous invoices.” In the covering letter, which was copied to the Manager and the Assessor, Houstons said that invoice was “in respect of work not covered in our invoice 9120 dated 6/10/2021.”

16. [16]

    The possibility of further invoices was foreshadowed:

The summons

1. [17]

   The summons filed on 26 June 2025 was amended on 8 December 2025, the only difference from the original summons being the plaintiff’s ABN number. The plaintiff seeks the following orders:

   1. (1)

      A declaration that the Second Defendant’s decision to refer the Amended Application for Assessment of Costs (2024/00422492) filed on 15 May 2025 (Amended Application) be set aside as the Amended Application was accepted:

   2. (2)

      A declaration that the first Application for Assessment of Costs (2024/00422492) filed on 12 November 2024 (First Application) was withdrawn by the filing of the amended Application on 15 May 2025.

   3. (3)

      An order that the costs of the withdrawn First Application be paid by the First Defendant to the Plaintiff in lieu of agreement as assessed

   4. (4)

      A declaration that the Amended Application filed on 15 May 2025 is invalid.

Relevant statutory and regulatory provisions

1. [18]

   Part 4.3 of the LPUL Act is titled “Legal Costs”. The objectives of the Part are stated at s 169:

2. [19]

   Sections 193 and 198 of the LPUL Act relevantly provide as follows:

3. [20]

   The Legal Profession Uniform Law Application Act 2014 (NSW) (“the LPUL Application Act”) provides at s 68:

4. [21]

   The Regulations, cll 32(1), 33 and 34, provided as follows:

The hearing

1. [22]

   Mr Doyle informed the Court that he is the principal of DLaw Pty Ltd trading as Doyles, and the principal of FifthLaw Pty Ltd, trading as Houston and Associates. He explained the reason for the delay in submitting the April 2025 invoice as follows:

2. [23]

   Mr Doyle’s fundamental submission, at its heart, was straightforward. The legislation and Regulations did not expressly provide for an application for a costs assessment to be amended or for the relevant procedure to be varied. He submitted that Brierley v Reeves (2001) 51 NSWLR 689; [2001] NSWCA 189; (“Brierley v Reeves”) is authority for the proposition that the legislation and Regulations concerning the lodging of an application for a costs assessment require strict compliance with their terms (they are “mandatory”), so that any deviation renders the purported application void. The filing and treatment by the Manager of the May 2025 filing fell short of those mandatory requirements in two ways.

3. [24]

   First, upon receipt of the May 2025 filing, the Manager failed to comply with cl 34(1) of the Regulations by not giving a copy of it to Doyles, with advice that it may lodge a response within 21 days and then wait for the response before forwarding it to the Assessor.

4. [25]

   Second, since there is no statutory or regulatory provision to amend a costs application (and therefore it cannot be done), the May 2025 filing, properly understood, could only be construed to be a fresh application for a costs assessment. As such, pursuant to cll 32 and 33 of the Regulations, the correct lodging fee was 1% of the total amount in dispute; that is, 1% of the original fees in dispute ($256,223.04) and the April 2025 invoice ($139,095.00) being a total of $395,318.04; that is, a lodgement fee of $3,953.18, rather than $1,390.95. The May 2025 filing rendered the earlier application was either implicitly withdrawn or otherwise “invalidated”.

5. [26]

   Croft submitted that orders 1 and 2 that are sought in the summons are inconsistent; if pursuant to the first prayer the amended application is void, it cannot have caused the original application to have been withdrawn.

6. [27]

   The plaintiff’s contention that, pursuant to Brierley v Reeves, cl 34(1) of the Regulations requires strict adherence, is patently incorrect. Rather, Croft submitted, the test is substantial adherence, relying upon Kennett v Muc t/a GH Healey & Co [2013] NSWSC 119 (“Kennett v Healey”). The terms of the two statutes and Regulations are consistent with a general implied power to amend an application for a costs assessment. By way of a hypothetical illustration, the first defendant noted that the application form includes the parties’ contact details. Assuming strict compliance is the test, if the solicitor or client should change their phone number, email address or physical address, or if there was an error in those details entered onto the form, the application would be invalid and the party seeking the costs assessment would have to start all over again.

7. [28]

   Another example follows from to ss 198(8) and (9) of the LPUL Act. If a costs Assessor determines that it is appropriate to add a party to the assessment, it follows that the application is effectively amended to reflect that determination.

8. [29]

   Croft conceded that the Manager had not served the amended application in accordance with cl 34(1)(a) of the Regulations but noted that Croft’s solicitor and the Assessor had ensured that Houstons had received a copy. Croft submitted that the terms of s 68(2)(c) of the LPUL Application Act do not specify who or how the application for costs assessment is to be served on the other parties, other than “in accordance with the costs assessment rules”. However, there were no such rules at the time the amended application was lodged, and the Regulations did not exclude service being effected other than by the Manager.

9. [30]

   Croft submitted that amending the original costs application was appropriate in the circumstances created by the plaintiff issuing the April 2025 invoice in respect of the same retainer and period of work under review pursuant to the original cost application.

Consideration

1. [31]

   The plaintiff’s reliance on Brierley v Reeves is misplaced. That case concerned a different issue, namely, whether the jurisdiction to have costs assessed is enlivened when an application is made within the period prescribed for such an application but it is not accompanied by the required fee, which had not been waived or postponed within the relevant time: see Brierley v Reeves at [8]. The appellant in that case had submitted that his application could be heard if it was filed within 12 months, even though it had not been lodged with the requisite fee and the fee had not been waived in that period. The relevant statutory provision (s 203 of the Legal Profession Act 1987 (NSW), since repealed), was similar in substance to the combined effect of ss 68(2)(a) and (b) of the LPUL Application Act and to s 198(3) of the LPUL Act.

2. [32]

   In determining the issue in favour of the respondent, the majority (Rolfe A-JA, Handley JA agreeing) noted the mandatory nature of the provision but confined their interpretation of it to the circumstances of the case. At [40]:

3. [33]

   In Kennett v Healey, Adamson J considered whether the failure by a party seeking a costs assessment of party/party costs to lodge an objection received from the other party with their application, where that was a requirement of s 354(1)(a) of the Legal Profession Act 2004 (NSW) (repealed) and, more particularly, of cl 125(1) of the Legal Profession Regulations (2005) (repealed). Her Honour found that the communication from the other party was not an “objection” within the terms of cl 125(1), but added that in her view Parliament would not have intended that failure to comply with a procedural requirement would invalidate the costs application or the consequential assessment where its purpose was to do no more than “ensure, for reasons of efficiency, that the area of dispute between the parties to the assessment is as well delineated before the application for assessment is lodged as it can be.”

4. [34]

   Her Honour continued:

5. [35]

   Her Honour distinguished Brierley v Reeves, stating at [61]:

6. [36]

   Although Adamson J’s observations were obiter, the distinction that her Honour drew in the circumstances of Kennett v Healey between matters of procedure and more substantive requirements in the statutory and regulatory scheme has parallels in the circumstances of the instant case.

7. [37]

   In Attorney General for New South Wales v XX [2018] NSWCCA 198 the Court succinctly stated the principles of statutory construction:

8. [38]

   In applying those principles, I take note of the objectives of Part 4.3 of the LPUL Act at s 169, in particular, s 169(b): “that law practices must not charge more than fair and reasonable amounts for legal costs”. A relevant circumstance is the pattern of Doyles’ billing: regular monthly invoices that ceased the month after the matter settled, then 15 months later, which is five months after the lodging of the application for a costs assessment, the April 2025 invoice was issued. It is unsurprising that the legislative and regulatory scheme does not, in terms, accommodate such a rare scenario, let alone one where the solicitor sends a further invoice four months later for work allegedly done four years before, and foreshadows even more invoices.

9. [39]

   The issue here is whether it was open to the Manager to amend the original application to include the April 2025 invoice, where the Manager has adjusted the fee so that there is compliance with cl 33(1)(c) of the Regulations, in respect of the amended total amount of costs that are in dispute. The plaintiff is not disadvantaged by the amended application, since he claims that it is for work done in the same period and for the same matter as Croft’s original application.

10. [40]

    The interpretation of s 198 of the LPUL Act, s 68 of the LPUL Application Act and cll 32, 33 and 34 of the Regulations for which Doyles contends is not made out. Those provisions do not exclude an application for a costs assessment being amended in appropriate circumstances to better achieve the objectives of the relevant Part of the LPUL Act. Indeed, the circumstances of this case are such that the purpose of the statutory scheme would be defeated if each time that Doyles issued another invoice for work done years before, in the period relevant to the original costs application, it had to be abandoned and a fresh application made.

11. [41]

    Similarly, the plaintiff has not demonstrated any injustice or loss by the amended application being served upon him by Croft’s solicitor rather than by the Manager, and the loss of an opportunity to lodge an objection to the Manager in respect of the inclusion of the April 2025 invoice with the other invoices. Analogously to Adamson J’s observations extracted at [34*] above, Doyles had (and still has) an opportunity to make submissions to the Assessor concerning the amended application.

12. [42]

    Accordingly, I dismiss the summons. Both parties have advised that they do not wish to be heard against an order for costs being made and determined in the usual way.

Orders

1. [43]

   I make the following orders.

   1. (1)

      The plaintiff’s amended summons, filed on 8 December 2025 is dismissed;

   2. (2)

      The plaintiff is to pay the first defendant’s costs.