Nassif v New South Law Group Pty Limited t/as New South Lawyers

Nisserine Nassif is a former client of New South Lawyers (NSL). On 26 April 2023, she retained that firm to act for her in proceedings against her (now) former husband in the Family Court of Australia. On that day, Ms Nassif paid $10,000 into NSL’s trust account in respect of anticipated fees and disbursements. On 10 May 2023, NSL provided a fee disclosure agreement to Ms Nassif. Between 10 May 2023 and 13 September 2023, NSL provided legal services to Ms Nassif in relation to her Family Court litigation. NSL’s retainer was terminated by Ms Nassif, and NSL rendered its final bill for professional services to her, on 13 September 2023. The last date by which NSL could file an application for assessment of its costs was therefore 13 September 2024.

On that date, rather than filing such an application, NSL instead sought orders from the Family Court in Ms Nassif’s proceedings for the provision of security, in the nature of a “fruits of litigation” lien for its then total claim for costs in the amount of $879,613.45, presumably over such property as Ms Nassif may have in due course become entitled to in those proceedings. NSL was joined as the eighth defendant in those proceedings.

In addition, on 27 February 2025, NSL commenced separate proceedings against Ms Nassif in the District Court of New South Wales for the recovery from her of its costs which were the subject of a completed costs assessment in 2025/00217352. Two other proceedings were commenced in the Local Court against Ms Nassif by NSL seeking the recovery of its costs in related matters.

On 27 March 2025, Ms Nassif filed a defence in the District Court proceedings. Similar defences were filed in the Local Court proceedings. These defences relied upon alleged contraventions by NSL of ss 174(1)(a) and (3) and 178(1)(a) of the Legal Profession Uniform Law.

On 5 June 2025, nearly 38 weeks after the 13 September 2024 deadline, NSL filed its application for costs assessment with the second defendant. The second defendant notified Ms Nassif’s solicitors of that fact by letter the following day.

On 27 June 2025, Thurlow Fisher Lawyers, Ms Nassif’s current solicitors, wrote at some length to the second defendant objecting to NSL’s application. That letter is as follows:

One week later, on 3 July 2025, NSL wrote to the second defendant. That letter is as follows:

The second defendant’s decision was published on 3 September 2025. That decision, of which Ms Nassif now seeks a review, was a determination extending the time by which NSL was required to lodge its applications for assessment of costs pursuant to s 198(4) of the Legal Profession Uniform Law in costs assessment proceedings numbered 2025/00217352 and 2025/00217411. That decision is in the following terms:

Now, by her Amended Summons (Judicial Review) filed on 18 December 2025, Ms Nassif seeks relief from the whole of the second defendant’s decision in terms of the following orders:

In the various documents upon which all parties rely, Ms Nassif is sometimes referred to by her name, sometimes as the plaintiff and sometimes as the costs respondent. For the sake of clarity, I propose to refer to her in what follows as Ms Nassif. Correspondingly, and for cognate reasons, I propose to refer to New South Wales Lawyers as NSL, rather than as either the first defendant or the costs applicant.

Ms Nassif’s contentions essentially mount two attacks upon the second defendant’s decision. The first relies on s 93B of the Legal Profession Uniform Law Application Act 2014 and UCPR 49.19(1) and 49.20, which are as follows:

The principles that apply to a review pursuant to UCPR 49.19 are not in dispute and were conveniently summarised by Chen J in Boesnsch v Bingham [2022] NSWSC 1432 at [41]:

Without intending or appearing to discount the importance of Ms Nassif’s submissions, it does not seem to me that she can demonstrate, or that she has demonstrated, why it could be said to be in the interests of justice to intervene. The second defendant’s decision bespeaks a principled appreciation of the competing positions of Ms Nassif and NSL. NSL claims to be owed a very significant amount for the costs of the legal services it provided to Ms Nassif. Undoubtedly, Ms Nassif retained NSL with the anticipation and expectation that she would be required to pay for these services. Correspondingly, NSL would have accepted Ms Nassif’s retainer upon the basis that she would pay them their reasonable costs as agreed or assessed. The only relevant interference with those expectations stems from NSL’s omission to apply for assessment of its costs in a timely way.

Ms Nassif did not suffer any prejudice as the result of NSL’s failure to do so, or from the fact that the application to extend time was not initiated for almost nine months beyond the specified time. It is trite to observe that the prospect that she may now be involved in a contested costs dispute that she would have avoided if the decision to extend time had not been made is entirely beside the point. It was in one sense ever thus. There is no evidence before me, and no submissions have been made on Ms Nassif’s behalf to suggest, that she relied upon NSL’s failure to apply to assess the costs within time to her detriment or that she irrevocably changed her position upon the basis that she no longer had a significant liability to NSL for the costs they incurred in representing her in contested litigation.

Some comparable decisions of this Court might be thought on one view to suggest that nine months is a significant and inordinate delay and that its presumptive significance should not lightly be disregarded. In my view, the proper characterisation of any period of delay is a function of both what, if anything, occurs while it runs and the explanation given for it. Unlike cases where a party’s inaction might give, or appear to give, rise to the suggestion that there was never any prospect that an application for a costs assessment might be made, or, to a similar effect, that the law firm was no longer interested in pursuing its costs, NSL took steps on the very day when the 12-month time limit expired, to intervene in the Family Court proceedings claiming what amounted to an interest in Ms Nassif’s potential share of a distribution of matrimonial proceeds. Ms Nassif could not have been in any doubt that NSL continued to be interested in the recovery of the costs it claimed. It is relevant to note that NSL’s pursuit of the “fruits of litigation” lien ultimately came to nought as there were no fruits: see Pirani v Pirani (No 8) [2026] FedCFamC1F 169. On no reasonable basis could it be said that NSL was silent or inactive in pursuit of its costs in the period between 13 September 2024 and 5 June 2025.

Moreover, a failure to extend time to permit NSL’s application would have had a decisive impact upon NSL’s rights to recover anything by way of professional costs for the services it provided. Conversely, it cannot be said that the extension of time has had what could be described as “a decisive impact” (as properly understood) upon Ms Nassif, as the decision merely reinstates what in the ordinary course must have been her original expectation in any event. Furthermore, the issues that Ms Nassif has raised to suggest that NSL’s ability to recover all or any part of its claimed costs is or may be adversely affected by its failure to comply with its costs disclosure obligations remain arguments that are still available to her in the assessment process.

The second defendant’s decision patently recognises and gives effect to the significant contrast between the consequences for Ms Nassif on the one hand and NSL on the other hand should the extension of time not have been granted. I have had regard to the second defendant’s approach to the issue in forming my own views. For the purposes of the review pursuant to UCPR 49.19, it is neither in the interests of justice nor fair that the second defendant’s decision should be varied or discharged.

The second attack maintains that the second defendant did not afford Ms Nassif natural justice in that he failed to provide her with an opportunity to make submissions in reply to NSL’s 3 July 2025 application for an extension of time reproduced above at [7]. NSL had consented in terms to Ms Nassif being given such an opportunity in those submissions but Ms Nassif maintains that it was never provided. She contends that that amounted to a denial of natural justice.

I disagree. Fundamentally, the concept of a denial of natural justice as the result of some procedural unfairness contemplates at least the prospect that a different course of action would have been taken and/or that there was a reasonable chance of securing a more favourable outcome if the lost or missed opportunity complained of had in fact been provided. In the present circumstances, Ms Nassif maintains that, if she had been given the opportunity, she would have changed her position and furnished the second defendant with further materials, presumably in the form of additional submissions, in opposition to NSL’s application for an extension of time, and that there was in those circumstances a reasonable prospect that the second defendant’s decision would have been different.

Both Ms Nassif and NSL drew my attention to the well-known decision of CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83. In that case, Basten JA said this at [39]:

Two things need to be noted. To start with, Ms Nassif’s extremely thorough and detailed pre-emptive submissions, provided to the second defendant even before receipt of NSL’s 3 July 2025 letter to him, state and explain her opposition to the application in clear terms. Paragraph 12 of the Thurlow Fisher letter certainly asks unambiguously for the opportunity to provide submissions in reply to NSL’s own submissions. However, the true measure of whether Ms Nassif has suffered a practical injustice must in my view be gauged by the content of any arguments that are now advanced on her behalf on this point before me. Simply put, Mr Barry did not as far as I am able to discern raise any new or additional issue of fact or law before me that he maintains could and would have been placed before the second defendant on Ms Nassif’s behalf if given the chance. Ms Nassif’s lost opportunity to make submissions does not appear to be likely to have made any difference.

Secondly, and in a related sense, the second defendant’s decision, although economical in its terms, deals with what are really the three principal issues for consideration. These are the length of NSL’s delay in making the application to extend the time, the explanation for that delay and whether it is just and fair for the application for assessment to be dealt with after the 12-month period specified in s 198(3) of the Legal Profession Uniform Law. The realities are that Ms Nassif was not able in her 27 June 2025 letter to say more than that a period of nearly nine months was excessive and that NSL’s stated reasons for the delay were inadequate.

Significantly, in my opinion, Ms Nassif was unable to demonstrate that she has, or will have, suffered prejudice by the extension of time or that any prejudice to which she is able to point is greater than that which NSL would suffer if the extension of time were not confirmed. As NSL has emphasised, Ms Nassif’s submissions did not deny that the costs claimed related to legal services with which she had undeniably been provided. Her limited but different complaint, raising the prospect that the quantum of the costs claimed could be challenged for a number of reasons, amounted in fact to a tacit recognition that she was the beneficiary of legal services for which at least in the first instance she might be expected to pay. But for the extension in question, Ms Nassif stood to secure a windfall in the sense that she would no longer have any liability for a considerable amount of costs that were incurred upon her instructions. NSL’s position, by comparison, was substantially different. The second defendant’s decision fairly recognised that dissimilarity and I am unable to conceptualise any submissions that Ms Nassif might have liked to provide to the second defendant that could reasonably, far less persuasively, have influenced or supported a decision in her favour.

It follows in my opinion that Ms Nassif’s amended summons should be dismissed with costs.