Martinez v Al Maha Pty Ltd

1. [1]

   HER HONOUR: This decision concerns a dispute between a law firm and a former client as to whether an application for the assessment of costs was filed out of time.

2. [2]

   By amended summons filed 9 March 2021, the plaintiff seeks a declaration that the defendant’s application for assessment of costs (“the application”) in matter 2020/00201852 was made outside the time prescribed by ss 193(2) and/or 198(3) of the Legal Profession Uniform Law (NSW) No 16a of 2014, and an order that the application be dismissed.

3. [3]

   The plaintiff is Juan Jose Martinez as trustee for the Martinez HWL Practice Trust and Other t/as HWL Ebsworth Lawyers (“the law practice”). The defendant is Al Maha Pty Ltd (“Al Maha”). The parties relied upon a court book.

Background facts

1. [4]

   The law practice has acted for Antoine Bechara and companies associated with him for a number of years.

2. [5]

   In January 2018, the law practice was retained by Al Maha and Sophia Bechara to act for them in relation to a dispute concerning an exercise of an option by Al Maha to purchase a property in St Leonards (“the property”) from Mr Coplin, which resulted in Supreme Court proceedings No 2018/39242.

3. [6]

   On 16 October 2014, Al Maha and Mr Coplin entered into a put and call option agreement (“the agreement”) under which Mr Coplin granted to Al Maha an option to purchase the property. The option was granted by Mr Coplin to Al Maha, who nominated Ms Bechara as the purchaser.

4. [7]

   On 14 May 2015, Mr Coplin commenced proceedings in the equity division, in proceedings No 2015/143602, seeking to have the option set aside on the basis that it was an unfair contract. These proceedings were heard by Lindsay J on 2, 3 and 4 May 2016 and 2 June 2016.

5. [8]

   On 16 December 2016, Lindsay J delivered judgment in Coplin v Al Maha Pty Limited [2016] NSWSC 1745 and declared the agreement to be void ab initio. Al Maha appealed this decision (“the first appeal”).

6. [9]

   On 11 December 2017, the Court of Appeal delivered its judgment allowing the appeal and setting aside the declarations and orders of Lindsay J and in lieu thereof ordered that the statement of claim be dismissed with costs: see Al Maha Pty Ltd v Coplin [2017] NSWCA 318.

7. [10]

   The Court of Appeal judgment started time running on the exercise of the option (the parties had entered into a variation to this effect). One way in which the option could be exercised was by giving notice to Mr Coplin’s “solicitor/conveyancer”, who was identified in the contract as V J Tait & Co. Al Maha purported to exercise the option by service of notice upon V J Tait & Co. However, by the time of service, V J Tait & Co were no longer instructed.

8. [11]

   Mr Coplin contended that service on V J Tait & Co was not valid service, and that as a result the option had not been validly exercised.

9. [12]

   On 6 February 2018, Al Maha commenced proceedings in the Supreme Court seeking specific performance (“the specific performance proceedings”). On 22 October 2018, the matter was heard by Kunc J. On 24 October 2018, his Honour delivered judgment and held that the option was validly exercised and that, subject to payment of the deposit, Ms Bechara was entitled to an order for specific performance: see Al Maha Pty Limited v Coplin [2018] NSWSC 1623 Mr Coplin appealed this decision (“the second appeal”).

10. [13]

    On 8 April 2019, Mr Bechara informed Greg Lewis, a partner of the law practice, that their retainer in relation to the appeal was terminated. On 8 April 2019, the law practice filed a notice of intention of ceasing to act.

11. [14]

    On 15 April 2019, the law practice issued an invoice to Al Maha for work done on the Coplin matter from November 2018 to date in the amount of $61,106.07, including counsels’ fees and other disbursements. At that time, there were other outstanding invoices in the amount of $79,161.47 in relation to it and different matters.

12. [15]

    In late April 2019, Mr Bechara contacted Mr Lewis regarding the law practice acting for Al Maha and Ms Bechara on the appeal.

13. [16]

    On 29 April 2019, Mr Lewis sent an email outlining the basis on which the law practice would be prepared to act on the appeal. Essentially, its conditions required a deposit of $100,000 to clear outstanding costs and a deposit on account of counsels’ fees.

14. [17]

    On 1 May 2019, the conditions were satisfied. On 2 May 2019, the law practice was reinstated to act in relation to the appeal, some five days before the hearing.

15. [18]

    On 7 May 2019, the appeal was heard. On 2 July 2019 the Court of Appeal delivered judgment dismissing the appeal with costs: see Coplin v Al Maha Pty Ltd [2019] NSWCA 159.

16. [19]

    In August 2019, Al Maha, Ms Bechara and Mr Coplin reached a settlement as to the costs of the appeal proceedings.

17. [20]

    For the period from 2 May 2019 to 14 August 2019, the law practice issued three invoices to Al Maha. Two invoices dated 30 May 2019 and 16 August 2019 were in respect of their costs, and one dated 9 July 2019 was in respect of counsel’s fees.

18. [21]

    It is the invoices of 30 May 2019 and 16 August 2019 (solicitor’s costs) that are the subject to an assessment application filed by the law practice on 29 November 2019. The 9 July 2019 invoice has been paid and is not the subject of a costs assessment.

19. [22]

    On 8 July 2020, Al Maha filed the application seeking an assessment of costs in relation to the Coplin matter from 30 January 2018 to 10 April 2019. The application was referred to Costs Assessor Bentley (“the Costs Assessor”). The law practice raised with the Costs Assessor the issue of the application being filed out of time and submitted that the Costs Assessor was unable to hear it.

20. [23]

    On 25 September 2020, the Costs Assessor determined that the application was filed in time.

21. [24]

    The question now before this Court is whether the application filed by Al Maha on 8 July 2020 was filed outside the 12 month period prescribed by s 198(3) of the Legal Profession Uniform Law.

The relevant legislation

1. [25]

   Before turning to consider whether the application was filed out of time, it is necessary that I first briefly set out the relevant legislation.

2. [26]

   The Legal Profession Uniform Law is an Act passed in Victoria and given force of law in New South Wales under s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW). The Legal Profession Uniform Law Application Act repealed the previous Legal Profession Act 2004 (NSW), which had similar but not identical counterparts in other States and Territories, including in Victoria (Legal Profession Act 2004), the ACT (Legal Profession Act 2006), Northern Territory (Legal Profession Act 2006), Queensland (Legal Profession Act 2007), Tasmania (Legal Profession Act 2007) and Western Australia (Legal Profession Act 2008) (the former uniform legislation).

3. [27]

   To date only New South Wales and Victoria have enacted the Legal Profession Uniform Law.

4. [28]

   Section 3 Legal Profession Uniform Law relevantly states:

5. [29]

   As the Legal Profession Uniform Law was enacted not as an Act of the New South Wales Parliament but enacted in Victoria and applied as a law of New South Wales by s 4 of the Legal Profession Uniform Law Application Act, under s 7(1) of the Legal Profession Uniform Law this Court is to apply the Interpretation of Legislation Act 1984 (Vic) rather than the Interpretation Act 1987 (NSW).

6. [30]

   Section 25 of the Victorian Interpretation of Legislation Act relevantly reads:

7. [31]

   Part 4.3 of the Legal Profession Uniform Law is headed “Legal Costs”. Its objectives are set out in s 169. It reads:

8. [32]

   Part 4.3 imposes obligations on solicitors to make disclosure of legal costs, including an estimate of the total legal costs which will be incurred in a matter (s 174(1)(a)). A “costs agreement” may be made between a law practice and a client (s 180(1)(a)), but that agreement cannot provide that the legal costs to which it relates are not subject to a costs assessment (s 180(4)). Part 4.3 also gives a client a right to make application for assessment of the whole or any part of the legal costs payable to a law firm by a client (s 198(1)(a)).

9. [33]

   Division 7 of the Legal Profession Uniform Law is headed “Costs Agreement”. Its objectives are set out in s 193. It reads:

10. [34]

    Section 198 of the Legal Profession Uniform Law relevantly reads:

11. [35]

    The expressions of “final bill” and “interim bill” are not defined in the legislation. It has been accepted that the equivalents of s 193(1) provide an effective definition of “interim bill”, being a bill “covering part only of the legal services the law practice was retained to provide”: see Turner v Mitchells Solicitors [2011] QDC 61 at [3] (“Turner”).

12. [36]

    A number of courts in considering the uniform legislation have construed earlier equivalents of ss 193 and 198 of the Legal Profession Uniform Law. All but one of those cases have accepted, construing ss 193 and 198 harmoniously, that the 12 month period referred to in s 198 means that the application must be made within 12 months of the “final bill”, even if the interim bill which is this subject of the application, was issued more than 12 months before the application was made. A primary consideration in reaching this construction has been that the alternative could lead to dysfunction and disruption to the relationship between the solicitor and client where the provision of legal services is continuing.

13. [37]

    At the hearing, counsel for the parties accepted that the effect of s 193 is to permit interim bills to “piggy back” on the timing imposed on a final bill in this manner (T12.6-16 and T20.4-9). However, their submissions diverge with regards to how this ‘piggy back’ concept operates, which I will explain shortly.

14. [38]

    Both parties referred to Challen (t/a Hawthorn Cuppaidge & Badgery) v Golder Associates Pty Ltd [2012] QCA 307 (“Challen”), where the Queensland Court of Appeal considered the issue of what constitutes a “final bill” for the purposes of imposed time limits. Although Challen concerned s 333 of the Legal Profession Act 2007 (Qld), it is in the same terms as s 193 of the Legal Profession Uniform Law. In considering the effect of s 333, the Queensland Court of Appeal relevantly stated at [44]:

15. [39]

    This reasoning in Challen has since been followed in Queensland by the District Court, Supreme Court and Court of Appeal; in Victoria by the Supreme Court in Viscariello v Oakley Thompson & Co Pty Ltd [2012] VSC 351; Collection Point Pty Ltd v Cornwalls Lawyers Pty Ltd [2012] VSC 492; Mackie & Staff Pty Ltd v Khor & Burr [2013] VSC 696 (but not by Wood AsJ in Dromana Estate Ltd v Wilmoth Field Warne (a firm) [2010] VSC 308); and in Western Australia by the District Court.

The Costs Assessor’s decision

1. [40]

   On 25 September 2020, the Costs Assessor determined that the application made by Al Maha was filed in time. His reasoning is as follows:

2. [41]

   The Costs Assessor then set out ss 198 and 193 of the Legal Profession Uniform Law (the law), before continuing:

3. [42]

   The Costs Assessor then set out [44] of Challen, reproduced earlier in this judgment. The Costs Assessor continued:

The review in this Court

1. [43]

   There are two primary questions raised by the application for review in this Court. The first is which invoice constitutes the “final bill” for the “legal services the law practice was retained to provide” under s 193 of the Legal Profession Uniform Law. The second is whether the application was nonetheless brought out of time, because it was not brought “at the time of” the law practice’s 29 November 2019 assessment application.

2. [44]

   As the resolution of the first issue informs the second, I will consider these two issues in turn.

3. [45]

   On 8 April 2019, Al Maha terminated its retainer with the law practice. On 15 April 2019, the law practice issued an invoice to Al Maha in respect of its services rendered under the retainer.

4. [46]

   On 2 May 2019, some 24 days after termination, Al Maha reinstated its retainer in the same terms with the law practice. On 16 August 2019, the law practice issued a further invoice to Al Maha.

5. [47]

   The question for consideration is which invoice, in the context of the termination and reinstitution of the law practice’s retainer and the legal services the law practice was retained to provide, constitutes the “final bill” for the purposes of s 193 of the Legal Profession Uniform Law.

6. [48]

   It is common ground between the parties that if the 16 April 2019 invoice is held to be the “final bill”, the application was made outside the 12-month period allowed by s 198(3) and the Costs Assessor did not have a power to deal with the application.

7. [49]

   It is the law practice’s case that the termination of its retainer on 8 April 2019 is determinative of which bill is the “final bill” for the purposes of the application, despite Al Maha’s subsequent reinstitution of the retainer.

8. [50]

   On this point, the law practice referred to Turner which concerned an application for assessment of a number of invoices issued by the solicitors acting for Mr Turner for the period between 10 May 2002 and 4 February 2010. In Turner, the legal services were found to fall into three categories: the provision of advice, the application to set aside a default judgment in the Queensland Magistrates Court and the representation of Mr Turner in the proceedings before the Queensland Commercial and Consumer Tribunal (“the Tribunal”).

9. [51]

   In Turner, there was no issue that all the invoices relating to the proceedings before the Tribunal before the final bill were interim bills. The solicitors provided advice in May and October 2002 and rendered an interim bill while awaiting further instructions. On 30 June 2003, Mr Turner instructed the solicitors to seek to set aside the default judgment. This was done by consent and the matter was transferred to the Tribunal. In March 2004, the solicitors were then instructed to act in relation to the proceedings before the Tribunal.

10. [52]

    In considering the issue of which were interim bills and which was a final bill in Turner, McGill DCJ held that as the work that the solicitors were retained to do prior to March 2004 was completed, the bills in relation to it were final bills, despite being marked as “interim”.

11. [53]

    In Turner, McGill DCJ considered the issue of categorising the bills at [3], [28] and [29] as follows:

12. [54]

    The law practice submitted that as in Turner, Al Maha in these proceedings retained the law practice to appear in relation to its appeal, but then terminated the retainer on 8 April 2019, a month prior to the appeal. The law practice completed the work required to be done under its retainer up to that point in time and issued a completed bill to Al Maha on 15 April 2019. The law practice submitted that this constituted the “final bill” in relation to those services, and the broken retainer is the situation envisaged by McGill DCJ in Turner at [28].

13. [55]

    Al Maha submitted that the law practice seeks to assert that the time limit under the Legal Profession Uniform Law runs from the “final bill” in any period in which current instructions under the retainer are held. It submitted that the division of the retainer in this way is artificial in this case, where the two retainers were on the same terms in the same matter, separated by about 24 days, and where the retainer was resumed after the client brought its fees up to date.

14. [56]

    Al Maha submitted that the facts in Turner are not the same as those in these proceedings. In Turner, McGill DCJ found that there were three distinctive retainers in relation to separate and discrete pieces of work, arising at different times, and that there were periods where the law firm received no instructions to do work. Al Maha submitted that it was in this context that McGill DCJ made his determination at [29], as set out earlier in this judgment. Al Maha submitted that Turner is not a case in which the Court was required to finally determine the question of the time limit for assessment in the context of a retainer which has been terminated and then resumed.

15. [57]

    Al Maha noted that in Turner, McGill DCJ considered that terminating or breaking a retainer is “not the point”, and that what is relevant for consideration is whether “the work the solicitors have been retained to perform has been completed” and, if it had, “whether there is a retainer to do further work” (at [28]). His Honour drew a distinction between a retainer in which there is work left to perform and a retainer in which the work has been completed. Al Maha submitted that in circumstances where the retainer continues, even after breaks caused by termination, the “final bill” is not issued until the work under the retainer is completed. The breaking or terminating of the retainer does not change “the legal services the law firm was retained to provide”, viewed prospectively. This is especially the case where retainer has been resumed on the same terms.

16. [58]

    Al Maha submitted that it is difficult to draw clear lines between “the legal services the law firm was retained to provide” in the circumstances of this case, where charges in relation to multiple matters appeared in the same bill, and where a number of retainers were conducted at overlapping times.

17. [59]

    Al Maha referred to Dart Mining NL v Foster Nicholson Jones [2016] VSC 836 (“Dart Mining”), where Woods AsJ considered a matter where the law firm had issued 10 invoices to the client over a period of 15 months, which were all headed “General Advice” and managed by the law firm under one file. Woods AsJ identified the question which arose for determination as being “whether the ‘General Advice’ file constitutes one retainer to provide general advice from time to time when matters arose or whether there are separate retainers for discrete issues which arise from time to time and are just conveniently run under the ‘General Advice’ file” (at [2]).

18. [60]

    In Dart Mining at [14], Woods AsJ concluded that “[t]he answer to the preliminary issue is that there were separate retainers for discrete issues”. His Honour also found that costs for discrete issues were at times contained in one bill, and that it was necessary to identify which costs related to which retainer in order to determine when the “final bill” in any matter was issued. For example, a bill could constitute both an interim bill for one retainer and a final bill for another retainer (at [23]-[34]).

19. [61]

    Al Maha submitted that there is no evidence that the law practice issued a written retainer or costs agreement, nor that it made the disclosure of costs required by the Legal Profession Uniform Law. There is also no evidence that the law practice treated or considered any retainer on the second appeal to be distinct from its retainer in the specific performance proceedings.

20. [62]

    Rather, the invoices in evidence in these proceedings cover work done for the specific performance proceedings, the second appeal, and some invoices combine charges for the work done in respect of those two proceedings.

21. [63]

    Al Maha referred to the tax invoices (No 977821 dated 30 May 2019 and No 1011019 dated 16 August 2019) in evidence in these proceedings. Each invoice bears the same matter reference, “Our reference: AIW- 869736”, and each invoice was issued by HWL to Al Maha bearing the heading “Coplin – Specific Performance Proceedings.” They are stated to be in relation to the Coplin matter, both in its first instance and appeal proceedings, which affirmed that result. Al Maha submitted that a further indication that all the work done was part of the same retainer is that the hourly rates of the fee earners remained the same for the whole period covered by the invoices in evidence.

22. [64]

    In light of this evidence, Al Maha submitted that the break in the retainer does not materially separate the “legal services the law firm was retained to provide”, and that it would be artificial to describe the 16 April 2019 invoice as the “final bill” on that basis.

23. [65]

    Ultimately, this consideration will turn on what legal services the law practice was retained to provide and whether these services were completed through the termination of the retainer. This is a question of fact.

24. [66]

    While the retainer was terminated by Al Maha on the 8 April 2019, it was reinstated on 2 May 2019 for the purpose of completing the same legal services that they were originally retained to provide. This was to provide Al Maha with legal services in its dispute with Mr Coplin over Al Maha’s assertion and exercise of the right to purchase the property.

25. [67]

    The tax invoices dated 30 May 2019 and 16 August 2019 bear the same reference number, title and both these invoices contained work in relation to both the specific performance proceedings and the second appeal with regards to Al Maha’s dispute with Mr Coplin.

26. [68]

    In line with McGill DCJ’s consideration in Turner (at [28]), it would be artificial to consider that this break in the retainer would separate the “legal services the law practice was retained to provide.” What is of greater significance is whether the work the law practice had been retained to perform was completed and, if it had, whether there was a retainer to do further work. It is my view that the break in the retainer does not materially separate “the legal services” that the law firm was retained to provide.

27. [69]

    Following this reasoning, I find that the invoice issued on 16 August 2019 was the “final bill” for the purposes of s 193.

28. [70]

    The second issue raised by this judicial review concerns the application of s 193(2) of the Legal Professional Uniform Law. As set out earlier in this judgment, s 193(2) relevantly states that “Legal costs that are the subject of an interim bill may be assessed… either at the time of the interim bill or at the time of the final bill”.

29. [71]

    As set out earlier, the law practice filed an assessment application on 29 November 2019 in respect of two invoices dated 30 May 2019 and 16 August 2019. Al Maha filed the application which is the subject of these proceedings on 8 July 2020.

30. [72]

    It is the law practice’s case that s 193(2) of the Legal Profession Uniform Law required Al Maha to bring its 8 July 2020 application “at the time of” the law practice’s 29 August 2019 assessment application. If so, then the assessment is still out of time, even where the 16 November 2019 invoice is determined to have been the “final bill”.

31. [73]

    At the hearing of these proceedings, the law practice referred to Turner where McGill DCJ considered the rationale for what is now s 193(2)(T11.8-12.4):

32. [74]

    The law practice argued that McGill DCJ’s statement in Turner that the provision “means what it says” suggests that a literal interpretation of the words should be adopted (T7.22-25):

33. [75]

    The law practice also set out what they argue is the rationale for their interpretation of the provisions (T7.30-36):

34. [76]

    The first rationale is derived from the ruling of Coorey DCJ in Retemu Pty Ltd v Ryan NSWDC, 16 April 2010 (unreported) (“Retemu”)(at p 13):

35. [77]

    At the hearing of these proceedings, counsel for the law practice submitted that this rationale for allowing the interim bills to be assessed with the final bill does not apply in this case. The law practice’s services were completed before the 29 November 2019 application for costs assessment. As the relationship between the law practice and Al Maha was at an end, there was no question of their relationship being prejudiced by the assessment of “interim bills” (T15.49-T16.2).

36. [78]

    The second rationale is again derived from the ruling of Coorey DCJ in Retemu (at p 15):

37. [79]

    Applying this rationale, the law practice submitted that Al Maha has provided no reason why it did not file its application during the time of the 29 November 2019 assessment application. It waited seven months, creating a practical difficulty for the Costs Assessor, whose efforts to determine whether costs were fair and reasonable is increased when he cannot consider the bills in the context of the matter as a whole (T16.6-14).

38. [80]

    The law practice submitted that while it is now well established that interim bills even more than 12 months old can be assessed at the time of the final bill, “piggy back” so to speak on the final bill, and thus create an exception to the time limit set in section 198(3), that is something very different from what Al Maha is seeking to do here.

39. [81]

    Counsel argued that this is not a case of an interim bill “piggy backing” on a final bill, but one where it has “jumped off its back and is racing ahead on its own” (T16.19-20).

40. [82]

    The counsel for the law practice further submitted that Al Maha are trying to create a new time limit which is not provided in ss 193 or 198 (T16.24-25).

41. [83]

    The law practice submitted that as far as their perusal of the cases that dealt with assessment of interim bills, the present situation has not been considered. They argue that these cases have been dealing with assessment of the interim bills at the time of the application for assessment of the final bill.

42. [84]

    Al Maha argued that the law practice’s submissions are flawed. There is only one time limit provided by s 198(3) of the Legal Professional Uniform Law. The meaning of the words “at the time” in that section cannot literally mean “at the time”, as in on the same day or in the same application, when the costs assessment scheme is considered as a whole.

43. [85]

    The scheme permits either a law practice or a client to make an application for the assessment of costs. Al Maha submitted that on the law practice’s construction of the clause, if a law practice made an application for a final bill, it would bar the client (or the law firm itself) from ever seeking assessment of interim bills, because they were not made the subject of assessment “at the time” of the final bill. This construction would permit one party – a law practice or client – to take control of the costs assessment process and effectively extinguish the rights of the other parties in relation to interim bills by applying to assess the final bill. The result would be that costs which were the subject of many interim bills would be locked out of assessment, despite the statute allowing assessment within 12 months of the final bill. The negative implications of this are set out by Al Maha during the proceedings (T22.5-9):

44. [86]

    Al Maha submitted that the negative implications of this construction have manifested in this case (T21.22-27):

45. [87]

    It is Al Maha’s submission that ss 193 and 198 should be construed harmoniously in accordance with the dictates of the rules of statutory construction so they can be given a meaning which supports the overall purpose and whereby they do not contract one another because on a literal interpretation they have the capacity to do so (T17.40-44).

46. [88]

    Al Maha referred to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 at [69] (“Project Blue Sky”), where the plurality stated at [69] and [78]:

47. [89]

    Al Maha submitted that the clear purpose of s 193(2) is to allow assessment of interim bills (T22.29-35):

48. [90]

    Al Maha submitted that ss 193 and 198 of the of the Legal Profession Uniform Law evince a clear intention that costs which are the subject of interim bills are to be available for assessment within the time frame that applies to costs which are the subject of final bills. This is what has been described as “piggy backing”, where the application for assessment rides along with the time limit created by the issue of the final bill.

49. [91]

    As to the “piggy back” concept, counsel for Al Maha submitted (T20.17-22):

50. [92]

    It would appear that McGill DCJ quite aptly described these provisions in Turner when he said:

51. [93]

    The parties have differing views with regards to the “piggy back” concept. The law practice submit that the interim bills can “piggyback” on the assessment of the final bill so long as the application for assessment for the interim bills is made “at the time” of the application for the final bill. Al Maha submitted that if the final bill is within the last 12 months then the interim bills can piggy back on the time.

52. [94]

    I accept the law practices submission that the rationale deployed by Coorey DCJ in Retemu in his interpretation of s 193(2) does not apply in this factual scenario. The litigation was finalised by the time the application was filed in November 2019 and therefore there could be no “dysfunction caused to the relationship” between the parties if the law practice’s interpretation is accepted.

53. [95]

    However, there does appear to be a contradiction in the law practices reliance upon Coorey DCJ’s rationale for what is now s 193 as allowing all bills to be assessed at the same time which enables scrutiny of the work that has been done and scrutiny of moneys that have been claimed for or paid (see Retemu at p 15).

54. [96]

    The law practice used this rationale to argue that in waiting seven months to file their application, Al Maha created a practical difficulty for the Costs Assessor, whose effort to determine whether costs were fair and reasonable is increased when he cannot consider the bills in the context of the matter as a whole.

55. [97]

    However, the law practice’s construction of the ss 193 and 198 provisions can result in the costs the subject of many interim bills being locked out of assessment, effectively enabling one party to take control of the cost assessment process and bar any other party from assessing costs. This is an unduly restrictive interpretation and would appear to cause a greater practical difficulty for a cost assessor being able to fulfill the purpose of the provision, as stated by Coorey DCJ, to enable scrutiny of the work that has been done and scrutiny of the moneys that have been claimed for or paid. It is my view that Al Maha’s application for costs assessment did not have to be made concurrently with the law practice’s application for costs assessment made on 29 November 2019.

56. [98]

    As the application for assessment was filed on the 8 July 2020, it was within the 12 month period specified by the legislation. The Cost Assessor’s decision that the application was filed within time is affirmed. The plaintiff’s amended summons filed 9 March 2021 is dismissed.

Costs

1. [99]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

   1. (1)

      The plaintiff’s amended summons filed 9 March 2021 is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs on an ordinary basis.