District Court New South Wales Medium Neutral Citation: Todorovska v Brydens Lawyers Pty Ltd [2021] NSWDC 382 Hearing dates: 28 – 29 July 2021 Date of orders: 06 August 2021 Decision date: 06 August 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 113 Catchwords: LEGAL PRACTITIONERS – costs – disclosure requirements – statutory cap on recovery of costs for small damages claims – whether firm and client contracted out of statutory cap – Regulation 116 of the Legal Profession Regulation 2005 – consideration of content of disclosure requirement – whether requirement imports obligation to advise CONTRACTS – costs agreement – breach – whether solicitors breached term which set price limit on printing or copying of pages Legislation Cited: Civil Liability Act 2002 (NSW) Contracts Review Act 1981 (NSW) Corporations Act 2001 (Cth) Insurance Contracts Act 1984 (Cth) s 21 Legal Profession Act 2004 (NSW) ss 309, 338, 339 Legal Profession Regulation 2005 (NSW) reg 116 Legal Profession Uniform Law 2014 (NSW) s 174 Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Attorney-General v Associated Newspapers Limited [1994] 2 AC 238 Breen v Williams (1996) 186 CLR 71 Carter v Boehm (1766) 97 ER 1162 CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619 Coshott v Barry [2012] NSWSC 850 Hogarth v Gye [2002] NSWSC 32 Houssein v Under Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087 Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 Newcastle City Council v McShane (No 3) (2005) 65 NSWLR 155 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 R v Regos (1947) 74 CLR 613 State of NSW v Avery (2016) 92 NSWLR 141 Texts Cited: Commonwealth of Australia, Financial Systems Inquiry Fixed Final Report (1997) G North, Company Disclosure in Australia (2013, Lawbook Co.) Category: Principal judgment Parties: Ms M Todorovska (plaintiff) Brydens Lawyers Pty Ltd (defendant) Representation: Counsel: Mr D Baran for the plaintiff Ms M Castle for the defendant Solicitors: Firths Lawyers for the plaintiff Defendant represented itself File Number(s): 2021/00012527 Publication restriction: Nil Judgment Background 1. On 11 March 2015, the plaintiff (Ms Todorovska) slipped and fell on the premises of Competent Minds Pty Ltd and suffered personal injuries. She brought a claim for damages against the occupier in a proceeding in this Court on 13 March 2015. She retained the defendant (the Firm) to act for her. In August 2017, the proceeding settled for the sum of $100,000 (inclusive of costs). 2. From the proceeds of the settlement sum, the Firm deducted the sum of $67,963.08 for its professional costs and disbursements. This amount included a component for $29,700 for professional fees and $16,500 for counsel's fees. 3. By s 338 of the Legal Profession Act 2004 (NSW) (the 'Act'), as it was then in force at the time of the retainer, the maximum costs for legal services (including counsel's fees) provided for a party in a proceeding for personal injury damages of the kind that Ms Todorovska commenced [1] was, in the case of the plaintiff, fixed at 20% of the amount recovered (here $20,000) or $10,000, whichever was the greater sum. I will henceforth refer to this as the 'statutory cap'. But this provision was subject to the ability of a plaintiff, and the firm representing her, to 'contract out' of that cap, under the combined operation of s 339 of the Act and Regulation 116 of the Legal Profession Regulation 2005 (NSW), then in force. As will be elaborated, the capacity of the client and the Firm to contract out in this way substantially hinged upon the Firm meeting certain prescribed 'disclosure' requirements. 4. In this proceeding, commenced on 15 January 2021, Ms Todorovska complains that she overpaid the Firm, by the sum representing the difference between what she alleges that the Firm charged her ($67,963.08) and what the Firm was entitled to under s 338 of the Act ($20,000). She brings a simple count for money had and received to the extent that the costs charged to her exceeded this statutory cap. 5. The Firm denies that it was overpaid and disputes liability. The Firm primarily contends that Ms Todorovska had contracted out of the statutory cap. In her Reply to the Firm's defence, Ms Todorovska contends that there was no contracting out of the Act, since the Firm had not complied with its disclosure requirements under s 339 of the Act and Regulation 116. 6. Ms Todorovska also made complaint about overcharging for photocopying, which the Firm denied. Specifically, by her amended pleading, she alleged that the Firm had breached an express term of the Conditional Costs Agreement by charging other rates which exceeded the $1.60 rate for printing (and photocopying) without her prior consent. 7. The issues for the Court's determination are: 1. what constituted the costs agreement entered into by the parties and what were its terms? 2. whether the Firm complied with its disclosure requirements under Regulation 116, and was therefore effectively contracted out of the statutory cap? 3. whether the costs agreement was breached in relation to the photocopying charge and if so, whether the plaintiff suffered loss because of it. The Facts 1. Ms Todorovska had her accident on 11 March 2015. She had previously retained the Firm on an earlier claim for damages for a 'slip and fall incident', in 2011. She surmised that she would have received a costs agreement on that occasion; although she was not pursued on her evidence about the content of that costs agreement. 2. On 13 March 2015, Ms Todorovska conferred with Mr Wes Ranson, an Associate of the Firm. Mr Ranson said that he took written instructions. Those written instructions were tendered (Exhibit B). No reference was made in the notes to any discussion on the subject of costs during the conference. The disclosures concerning costs: the Firm's 13 March 2015 letter and enclosures 1. Thereafter, a file was created and the Firm sent to Ms Todorovska a letter dated 13 March 2015, to her postal address. The letter enclosed multiple documents. These were: a client information factsheet, medical authorities for the (prospective) client to sign, a 'Conditional Costs Agreement' (in duplicate), a 'notice' (purportedly) issued pursuant to the Act and a Firm "Profile". The letter requested Ms Todorovska to sign the duplicate copy of the (Conditional) Costs Agreement and return it to the Firm. 2. At the tail of the letter the following was stated: "You will also find attached a standard costs agreement between solicitor and client in personal injury matters which will apply in the event that you do not execute and return the conditional cost agreement." This standard version was also attached to the letter. 3. Mr Ranson accepted that the documentation supplied represented the entirety of the documentation that the Firm relied upon in discharge of its obligations of 'disclosure' on the subject of costs. He said he understood that the Firm was required to inform Ms Todorovska of the 'capped costs provisions' before, or as soon as practicable after the Firm had been retained, but before her entry into the costs agreement in circumstances where there was a claim, subject to the provisions of the CL Act, where damages (or a settlement) would not exceed $100,000 and an explanation as to how costs would be calculated. 4. As part of the Conditional Costs Agreement, at clause 5, charge-out rates were identified. 5. At clause 5(b), it was stated that "We" (the Firm) may pay expenses for Ms Todorovska, and that she was required to repay those expenses. This included, amongst other things, 'barristers fees'; but it also included fees for services that the Firm used, or supplied on her behalf. The document stated that "Our rates for these services are …. photocopying: $1.60 plus GST per page." 6. At clause 18 of the Conditional Costs Agreement, there was an explanation under the sub-heading 'Costs Disclosures – Maximum costs recoverable and offers of compromise'. This was a long statement (relevantly) in the following terms: "In accordance with relevant provisions of the Act and the Legal Profession Regulation 2005 (NSW) ('the Regulation') we are required to inform you of the following before you decide to enter a costs agreement with us: where the amount received in your claim does not exceed $100,000, the maximum amount of professional costs which you are required to pay is 20% of the amount recovered or $10,000, whichever is the greater. This would include barrister's fees if a barrister is retained for your claim. The same restrictions also apply to any costs which can be recovered from the other party if your claim is successful …. … The restrictions on the professional costs you have to pay your lawyers, as explained above, do not apply if you enter into a costs agreement with us which complies with Part 3.2 of the Legal Profession Act 2004 and you pay us in accordance with the costs agreement, if you enter into such an agreement with us. However, if you are successful, the amount of costs, which becomes recoverable from the other party, will still be limited to the maximum amounts set out in subparagraph (a) above, which will be less than our costs payable by you if you enter into the costs agreement. We can only act for you in accordance with this costs agreement and your acceptance of it. …." 1. At clause 20, the Conditional Costs Agreement stated that the document "constitutes an offer to enter into a costs agreement with you. If you accept this offer you must sign and return this document to us. We will not do any work on your matter until this is done. If you do so you will have entered into a conditional costs agreement with us and will be bound by the terms and conditions in the agreement, including being billed in accordance with it. If you do not accept this offer within seven (7) days of dispatch, we may withdraw the offer to act on your behalf." 2. As indicated, the letter of 13 March 2015 also enclosed a 'Standard Costs Agreement between Solicitor and Client in Personal Injury matters' (emphasis supplied). The covering letter stated that this document would apply in the event that Ms Todorovska did not execute and return the conditional costs agreement. In cross-examination, Mr Ranson said that, so far as the Firm was concerned, it was not necessary for this standard costs agreement to be executed: it could be enforceable through the client's conduct. The Firm's belief was that if Ms Todorovska did not execute the conditional costs agreement, or (more relevantly) if she delayed in executing the conditional costs agreement, then the Standard Costs Agreement would apply until the former version had been executed. Applied to the present circumstances, the Firm's position was that the Conditional Costs Agreement became operative on 4 May 2015. Had that not occurred, the parties' rights and obligations in relation to costs would have been regulated by the standard costs agreement. 3. This proposed Standard Costs Agreement contained identical provisions in cll 5, 18 and 20 as were contained in the Conditional Costs Agreement. 4. The letter of 13 May 2015 also enclosed another document. This was titled 'Notice Pursuant to the Legal Profession Act: Civil Liability Act 2002". Its contents were as follows: "You would no doubt be aware from our initial discussions that a Plaintiff, such as yourself, who is successful in an action for personal injury damages is entitled to recover from the insurer an allowance for their costs. These are costs as between party and party and traditionally amounted to about two thirds of the actual costs incurred by the Plaintiff in the prosecution of the claim. However, things now are very different. Amendments have been made to the Legal Profession Act 2004 to restrict the amount of costs that are recoverable in a personal injury action upon its successful conclusion in the event that the amount of damages recovered is $100,000 or less. It does not apply where the amount is more than $100,000. That is, if the amount awarded by way of damages by the Court is $100,000 or less then the Plaintiff can only recover a reduced amount for party/party costs as prescribed by the Legislation. The amount of costs recoverable by a Plaintiff in proceedings where the amount of damages is $100,000 or less is set at $10,000 or 20% of the judgment sum, whichever is the greater. Furthermore, the sum of $10,000 is inclusive of all professional costs incurred by the Plaintiff for their solicitor and includes the fees payable to barristers engaged in the proceedings. The restriction on costs do not apply as between solicitor and client where a costs agreement exists and we will continue to act on the basis of our costs agreement as forwarded to you which estimates the likely costs that you will incur. However, the restrictions to which we have referred to above applies as to the recovery of party/party costs despite the existence of a costs agreement as between you and this firm." 1. Mr Ranson was cross-examined on the content of this notice. He accepted that its purpose was to inform Ms Todorovska of the operation of the Act in the event that she received an order for damages (or settlement) for no more than $100,000. He accepted that there was nothing in the notice to indicate what she should read before entering into the costs agreement. 2. As to the fourth paragraph of the notice, which generally dealt with the recovery of solicitor-client costs, he accepted that the "restrictions on costs" referred to in the paragraph had not been identified, as it related to solicitor-client costs. This meant that there was no indication of choice for the plaintiff: that she could retain the Firm on the basis that she recover capped costs at $20,000, but if she wanted to retain the Firm, she could only do so on the basis of the Firm's costs agreement, which entitled it to charge more than the statutory cap. He accepted that there was no disclosure in the notice, or any other document, that the Firm would not take on 'capped costs matters', but would only act for a client on the basis that it would act in accordance with agreed rates and that no warning had been given to her that she should read that warning first before she entered into a costs agreement. 3. When she gave evidence, Ms Todorovska said that she received the letter of 13 March 2015, and the enclosures, after an initial conversation with Mr Ranson. She thought she received the letter at the residential address, to which the letter was addressed. 4. Under cross-examination, Ms Todorovska accepted that she had read the enclosures. In relation to the Conditional Costs Agreement, she could not specifically recall raising any questions about their contents to the Firm; but, if she had, this was likely to have been raised before she signed the document on 4 May 2015. It was put to her that she did not raise any questions and she responded that she did not recall. She was referred to cl 18 of this document, but did not recall reading that clause. 5. Ms Todorovska was cross-examined closely about this provision in the costs agreement. She consistently said that she did not recall reading this particular provision. She said that she recalled reading some parts of the costs agreement, but not others. She did not say which parts she recalled reading. When asked generally about her understanding of what costs would be charged, her evidence was very vague. From her point of view, what was important was the advice that she had received that she had a "good claim". 6. She said she read that the 'Notice pursuant to the Legal Profession Act' and the 'Firm Profile' document. She said she did not recall reading the Standard Costs Agreement. If she had, she did not raise any questions about its content with the Firm. Reminders to the plaintiff to sign the (conditional) costs agreement: late April – early May 2015 1. On 28 April 2015, the Firm sent a letter to Ms Todorovska enclosing medical authorities to be signed and a copy of its Conditional Costs Agreement for her signature and requested that it be returned to its office. Ms Todorovska did not recall receiving this letter, or its request of her to return the Conditional Costs Agreement. 2. On 4 May 2015, the Firm sent another letter indicating that it had not received signed authorities and the costs agreement from Ms Todorovska and requesting that she provide them. Ms Todorovska did not recall receiving this letter either. 3. On the same date, 4 May 2015, Ms Todorovska signed the Conditional Costs Agreement and returned it to the Firm. When she gave her evidence, Ms Todorovska said that she could not recall anyone from the Firm explaining the 'Notice Pursuant to the Legal Profession Act'. She recalled receiving the Standard Costs Agreement, but not when, and she could not recall the circumstances. She did not recall anyone within the Firm asking her to return a signed version of it and she did not execute this document. Settling the claim 1. On 28 August 2017, the proceeding was before the Court for hearing. Ms Todorovska recalled meeting her Counsel in his chambers at least once before the hearing. She also recalled Mr Ranson appearing at one such conference. 2. The hearing had reached the stage where Ms Todorovska had, or was in the process of, giving her evidence in chief. Discussions occurred between her Counsel and Counsel for the occupier in a break. 3. Outside the courtroom, legal practitioners for the parties were trying to negotiate a settlement. Ms Todorovska gave evidence about being informed by her then Counsel that the terms, ultimately reflected in the Consent Judgment, were the best that could be negotiated. She said that her Counsel explained the breakdown of what would be received; that she was to receive approximately $17,200 (net) and what the Firm was going to receive. She indicated that she was not happy about that split but her Counsel had indicated that there was nothing he could do about that. That day, Ms Todorovska signed an authority to settle. She explained that this was after receiving her Counsel's advice. She understood, at that time, that she would receive (approximately) $17,200, plus 'something' back from Medicare. It turned out that she received $5,900 from Medicare; which meant she received, in the hand, the sum of approximately $23,600. Post-settlement discussions about the Firm's costs 1. Following the consent judgment on 28 August 2017, she spoke to Mr Ranson on 30 August 2017. Ms Todorovska had a limited recollection of what was discussed. Mr Ranson took a file note of the conference which note was in evidence (Exhibit 1). The content of the note reflected a general discussion about what had occurred at the hearing a few days before. The note manifested Ms Todorovska's disappointment that she had not been better prepared for the hearing, and her complaint about the time estimate (3 days). More materially, however, the note recorded Mr Ranson 'taking' the plaintiff through the charging for costs and disbursements and the authority that she had signed. This disclosed, among other things, the Firm's receipt of approximately $30,000, with disbursements in the amount of $22,000 and Counsel's fees of $17,500. 2. Ms Todorovska was recorded in the note as questioning whether the Firm could reduce its fees and Mr Ranson's response was recorded as indicating that much hard work had been performed by the Firm but "Lee (Hagipantelis) handled the costings". He said that the Firm would be in touch after it had completed its accounting; and that that would only occur once the settlement cheque had come in from the insurer (which was estimated to be 4 to 6 weeks). He anticipated that if there was to be any reduction at all, it might only be small (measured in "a thousand dollars or two"). Ms Todorovska was recorded as expressing that she would be grateful if any reduction could be made. 3. Mr Todorovska gave evidence that, about a week, or perhaps two weeks after, she spoke with Mr Ranson; indicating that she was not happy with the settlement sum. She queried whether there was any way that the Firm's costs could be reduced. She said that Mr Ranson indicated that he would see what he could do. 4. She said that, aside from the enclosures that came with the 13 March 2015 letter, she received no other written document indicating what she, as a client, might recover upon a successful verdict or judgment for damages in the quantum of $100,000 or less. She did not generally retain copies of documents, although she said she kept some. 5. Ms Todorovska was cross-examined on the invoice rendered by the Firm, the explanatory covering letter and 'cash statement' of 17 October 2017 (Exhibit A, pp 57-62). 6. The covering letter of 17 October 2017 indicated that the Firm had secured the assent of Mr Colovic, one of the plaintiff's witnesses in her claim, to waive his fees and the Firm expected that Ms Todorovska would approach another expert, Dr Protulipac for the purpose of ascertaining whether he might waive his fee. 7. On 17 October 2017, the Firm issued its invoice to the plaintiff and also a Trust Account/Cash Statement. The plaintiff said in her evidence that she was very upset when she saw the invoice. She was referred, in cross-examination to the standard explanation of her client 'rights' including avenues of dispute about the costs to the NSW (Legal Services) Commissioner or to have the costs assessed, but she said she did not recall reading that part of the invoice. 8. On that day, Ms Todorovska spoke to Mr Bandeli ('Lee') Hagipantelis, the supervising partner. Mr Hagipantelis took Ms Todorovska through the bill, but she could not recall any detail of that decision. A file note of the conference on 17 October 2017 was in evidence (Exhibit 1), although Mr Hagipantelis was not called to give testimonial evidence of what was said. The note recorded that the bill was discussed in detail and that Ms Todorovska had approved it; providing authority to the Firm to pay the sum from the settlement proceeds. No record was made of any complaint or objection by Ms Todorovska at this point in time. 9. On 24 October 2017, Ms Todorovska had another conversation with Mr Ranson. This one was by phone. She told him that she did not realise that Mr Hagipantelis was 'the boss'. The purpose of the call was to ask the Firm to reduce its fees. She reminded him of the indications Mr Ranson had given to her (on 28 August 2017) that matters relating to fees were handled by Mr Hagipantelis and that he had indicated the possibility of a small reduction in fees, in the realm of $1,000 or $2,000. Ms Todorovska indicated that she was still waiting to hear back from her psychologist (Zoran) whether he might waive his fees and Mr Ranson told her that 'Vladimir' had agreed to waive his fee. 10. She also said that she only became conscious about the amount charged for photocopying (or printing) after the settlement was reached in August 2017. Correspondence preceding this litigation 1. On 14 October 2020, Ms Todorovska's present solicitors (Firths) sent correspondence to the Firm, requesting its file and, in particular, a copy of the tax invoice rendered to Ms Todorovska and all costs agreements and costs documentation the Firm relied upon. 2. On 23 October 2020, Firths wrote to the Firm and indicated that Ms Todorovska had not retained copies of her costs agreements, cost disclosure or the tax invoice. On 29 October 2020, the Firm wrote to Firths that "the documents to which you refer have been previously made available to your client". 3. Some further correspondence ensued which was inconsequential. On 9 November 2020, the Firm sent a letter to Firths, enclosing: 1. a conditional cost agreement executed by the plaintiff on 4 May 2015; 2. a document entitled important information for people injured on public or private property; and 3. a notice pursuant to the Legal Profession Act — Civil Liability Act 2002 Division. 1. There was no reference in the Firm's letter of 9 November 2020 to the Standard Costs Agreement which, Mr Ranson accepted, the Firm considered governed the parties' rights and obligations until 4 May 2015; when Ms Todorovska executed the conditional costs agreement. 2. On 11 November 2020, there was correspondence between the Firm and Firths on the matter of whether Ms Todorovska had retained a copy of the tax invoice and cash statement. Copies of both documents were sent to Firths on 13 November 2020. 3. On 18 November 2020, Firths sent a letter to the Firm, responding to the latter's request (made the previous day) for particulars as to how the documentation did not comply with the disclosure requirements of Regulation 116. 4. On 15 January 2021, this proceeding commenced. The plaintiff was cross-examined on the veracity of her belief in the correctness of the second sentence in paragraph 8 of the statement of claim, as it was, prior to its being amended during the hearing. That paragraph concerned her claim for breach of contract. This was done with a view to showing that she did not treat seriously the task of verifying the factual assertions in her pleading. 5. After the proceeding had commenced, on 17 February 2021, Firths sent a letter to the Firm advising it that for the first time, it had become aware of the Firm's assertion that there were two costs agreements and it sought an explanation as to why there were two such agreements. 6. On 25 February 2021, Firths advised the Firm that it had seen for the first time the document titled 'Standard Costs Agreement'. The Firm's quantification of its photocopying and printing expenses 1. The Firm relied upon an electronically-generated document (Exhibit 2) to prove, with exactitude, all the printing and copying that was undertaken in connection with the file. Mr Ranson explained that some pages were charged at a lower rate than that which appeared in the costs disclosure agreement ($1.60) and other pages (representing coloured copies) were charged at a higher rate. 2. Under cross-examination, Mr Ranson accepted that if the Firm proposed to charge a higher amount for copying or printing, this was a matter appropriately to be disclosed and it had not been disclosed in the costs agreement. The statutory provisions 1. The applicable legislation, relevantly, was as follows: "LEGAL PROFESSION ACT 2004 - SECT 338 Maximum costs fixed for claims up to $100,000 338 Maximum costs fixed for claims up to $100,000 (1) If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows: (a) in the case of legal services provided to a plaintiff--maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater … (4) When the maximum costs for legal services provided to a party are fixed by this Division the following provisions apply (subject to sections 339- 341): (a) a law practice is not entitled to be paid or recover for those legal services an amount that exceeds those maximum costs..." 1. Section 339 of the Act was in the following terms: "LEGAL PROFESSION ACT 2004 - SECT 339 Maximum costs do not affect solicitor-client costs under costs agreements 339 Maximum costs do not affect solicitor-client costs under costs agreements (1) This Division does not apply to the recovery of costs payable as between a law practice and the practice's client to the extent that recovery of those costs is provided for by a costs agreement that complies with Division 5 (Costs agreements). (2) The regulations may make provision for or with respect to requiring disclosure by a law practice to the practice's client of information in relation to the effect of a costs agreement in connection with the operation of this Division. (3) The regulations may provide that a failure by a law practice to comply with the requirements of the regulations under this section disentitles the law practice to the benefit of this section, and in such a case this Division applies in respect of the claim concerned despite the terms of any costs agreement." 1. Regulation 116 of the Legal Profession Regulation was in the following terms: "116 DISCLOSURE REQUIREMENTS REGARDING COSTS AGREEMENTS--SECTION 339 OF THE ACT (1) This clause has effect for the purposes of section 339 of the Act, and applies to a costs agreement proposed to be entered into between a client or prospective client of a law practice in connection with a claim for personal injury damages referred to in Division 9 of Part 3.2 of the Act by the client or prospective client. (2) The law practice must disclose to the client or prospective client information in relation to the effect of the costs agreement in connection with the operation of Division 9 of Part 3.2 of the Act. (3) The information must include: (a) a statement that Division 9 of Part 3.2 of the Act would (but for the costs agreement) limit the maximum costs for legal services provided to the client or prospective client in connection with the claim, and (b) particulars as to how those maximum costs are calculated, and (c) a statement that the costs agreement would have the effect of excluding the operation of that Division, and (d) particulars as to how the costs would be calculated under the costs agreement, and (e) a statement that the costs agreement relates only to the costs payable as between the law practice and the client or prospective client, so that, in the event that costs are recoverable against the other party, the maximum costs so recoverable will be as provided by Division 9 of Part 3.2 of the Act. (4) Disclosure under this clause must be made in writing before, or as soon as practicable after, the law practice is retained in the matter, but before the costs agreement is entered into. (5) This clause does not require disclosure if the costs agreement in relation to the matter was entered into before the law practice could reasonably expect that the matter would involve a claim to which this clause applies. (6) A failure by a law practice to comply with the requirements of this clause disentitles the law practice to the benefit of section 339 of the Act." Parties' submissions The plaintiff's submissions The action for money had and received 1. Ms Todorovska submits that the relevant disclosures by the Firm were not made in writing before, or as soon as practical thereafter, the Firm had been retained but before the costs agreement had been entered into (Regulation 116(4)). That being so, Ms Todorovska submits that she was deprived of the benefit of having explained to her the statutory entitlement for the parties to the agreement to contract out of the statutory cap and that the Firm could charge in accordance with costs and disbursements the subject of a fee agreement. 2. She submits that it did not matter whether the costs agreement was conditional or unconditional. Since the nature of the proceeding was a claim for personal injury damages, s 338 of the Act applied, subject to the closely prescribed exception in s 339. 3. Ms Todorovska emphasised that the pre-requisites for contracting out of the fixed costs provisions must be substantially complied with. That being so, the Firm was not entitled to rely upon s 339 and its costs and disbursements were limited to $20,000. 4. Ms Todorovska pleads a count of money had and received, arising from the circumstances that under an operative mistake of fact, she paid money to a recipient (the Firm) which was not entitled to receive part of the funds and was thereby entitled to receive the part of the funds back. She should receive the portion of monies wrongfully paid to the Firm back, with interest. The breach of contract argument regarding photocopying 1. Ms Todorovska noted that the agreed rate for copying and printing was $1.60. But the Firm charged more than $1.60 in some instances, without disclosing that possibility, as it was required to do. This was sufficient to establish that the contract was breached. The Firm's submissions The action for money had and received 1. The Firm submits that two versions of costs agreements were sent to Ms Todorovska on 13 March 2015: one being the Conditional Costs Agreement (sent in duplicate) and the other being a standard costs agreement. This was explicable since conditional costs agreements had to be signed by the client in order to be valid. The Firm protected itself against the risk that a conditional agreement offered to the client was not signed by supplying a standard costs agreement at the same time prior to the supply of services, which could be accepted by the client continuing to provide instructions. Here, not unexpectedly, Ms Todorovska delayed executing and returning the Conditional Costs Agreement. A costs agreement was entered, however, on or about 4 May 2015, when Ms Todorovska executed the Conditional Costs Agreement. It was not material that a solicitor-client retainer came into existence on 13 March 2015. 2. Viewing the costs agreement as a whole, it complied with the disclosure requirements in Regulation 116. But the relevant context began with the concern in 2002 where it was apparent that as part of a legislative drive to reduce premiums upon public liability claims, it was desirable to impose caps on the party and party costs recovered, essentially, from insurers. The reforms were anything but an attempt to protect consumer rights and instead, the problematic scenario that might arise if there was any differential between party and party costs and what a client had to pay her solicitor's costs was left for another day. Sections 338 and 339, supported by the subordinate legislation in Regulation 116, were to provide a balance, to protect the rights of solicitors, and more particularly plaintiff's lawyers acting for clients with small personal injury claims (governed by the CL Act and not other statutory schemes to compensate injured claimants), the right to recover costs exceeding that which was recoverable but only upon the basis of 'disclosure' to the clients. 3. The purpose of that regulation was generally to inform the client that 'but for' the entry into a costs agreement, the solicitor's costs in a proceeding of this kind would be capped. That information needed to be 'revealed' [2] . It did not need to be explained. Under the applicable legislative scheme, as it then was, there was no requirement for a legal practitioner to provide explanation or advice, or to otherwise help the client understand what was meant in what was disclosed. The notion of securing the client's understanding only emerged subsequently, through s 174(3) of the Legal Profession Uniform Law 2014 (NSW). But, it was impermissible for the Court to reason back from the subsequent legislative amendments in interpreting the repealed legislative provisions in the broad fashion contended for by the plaintiff as if it imported an advisory component. But even if there was cause for concern as to whether Ms Todorovska understood the position, there were two matters of significance. First, she never asked any questions of Mr Ranson and, secondly, she never took the path, which had been disclosed to her, of applying for a costs assessment and, as part of that, applying to set aside the costs agreement in accordance with a set of criteria [3] . To be sure, she may only have had 12 months from the receipt of the invoice to apply for an assessment, as of right, but she also had the opportunity to apply for leave to bring such application within 6 years and the course of authorities [4] indicated that this procedural requirement was not insuperable. Essentially, it could be easier for an applicant to persuade a costs assessor that a costs agreement should be set aside because of an absence of understanding in the client, stemming from inadequate advice or explanation from a practitioner, than applying to the Court and to set it aside on the basis of general doctrines, in law or in equity, or other statutory provisions (such as the Contracts Review Act 1981 (NSW)). The disclosure requirements in Division 9 of the Act had to be construed in the light of such alternative remedies. 4. What the practitioner was required to disclose was apparent in Regulation 116(2), which was generic, and Regulation 116(3) which was more prescriptive. This essential information was disclosed. No choice of words was prescribed [5] . That placed a difficulty upon practitioners in explaining concepts, in a practical way to clients, whose sophistication was likely to vary. The matter was not to be approached according to form, but as a matter of substance. What was disclosed, in a provision in the costs agreement (identical in both the conditional costs and standard versions), in conjunction with a separate notice directed to the operation of the Act, also supplied on 13 March 2015, was adequate for the purpose of Regulation 116(3). The Firm argued, though, that what was contained in cl 18 of both versions of the costs agreement was enough; even without reference to the additional document. One thing which the Firm did not, however, have to disclose to Ms Todorovska was that it would not act for the client unless she agreed that the Firm could avoid the operative effect of capping provision in s 338. 5. To the extent that it was relevant at all, the Firm also adds that the effect of its construction was not unfair to Ms Todorovska. She had read the notice and the Conditional Costs Agreement and raised no questions about it. If her construction was accepted, it would result in the Firm only being entitled to recover an exceptionally modest amount (estimated to be $800) after having acted for her in the litigation for over two and a half years. 6. This meant that the Firm was not 'disentitled' from relying upon its negotiated costs agreement with Ms Todorovska. 7. Ultimately, Counsel for the Firm conceded that if her client had not complied with its disclosure requirement under Regulation 116, such that, by reason of s 339(3) of the Act (and Regulation 116(6)) it was disentitled to receive the portion of monies which the plaintiff claims, then an action in restitution did lie for the client to recoup that portion of monies on the facts in this case. The breach of contract claim 1. The Firm submits that this claim is inapposite in a court proceeding. If the client objected to a disbursement like photocopying or printing, this was apt for an objection in a costs assessment on the basis that the charge was not fair or reasonable. 2. Secondly, the claim only arose through a late amendment and was opportunistic. Ms Todorovska could not take the benefit of the Firm's non-compliance with the charging clause without taking the burden of it, as that would be contrary to the compensatory principle of damages; and result in her being better off, rather than in the position she would be if the charging clause was uniformly performed. Even if there was a breach, the damage could be no more than $744.30, on the basis of charging for copying or printing at a rate higher than $1.60. However, when 'undercharging' was taken into account, that is to say, when printing and copying was charged at a rate under $1.60, the total damage would reduce to $82.45. This sum would be less than what might be recovered in nominal damages. No award of substantial damages was warranted. 3. Further, even if there was any breach, it did not result in any 'damage' to the plaintiff which might sound in substantial damages. Plaintiff's submissions (in reply) 1. Mr Baran, Counsel for Ms Todorovska submitted, in effect, that Ms Castle's reference to the alternative path for the plaintiff of pursuing a costs assessment was a distraction. The Act did not purport to be a Code for clients' rights in relation to costs under a costs agreement and the plaintiff should not be criticised for her recourse to a court where there was no guarantee that, after 12 months after the invoice was rendered without her applying for an assessment, she would be permitted to bring it. 2. Mr Baran submitted that the word "information" in s 339(2) was to be broadly construed. Secondly, Regulation 116 indicated that the disclosure requirement had to be made prior to the entry into the costs agreement. Related to this, the disclosure could not be made within the costs agreement itself, but had to be separate to it. This proposition, it could be inferred, was shared by the Firm itself, when, at the same time it sent to Ms Todorovska the proposed costs agreement (the conditional costs and standard versions), it separately sent the 'notice' referring to the Act. That notice, to the extent that it purported to provide disclosure, was defective in terms of its compliance. Consideration Credit 1. Ms Todorovska had a limited appreciation of her rights and obligations when it came to legal charges. She also had a limited recollection of discussions; which was not surprising given the lapse of time. I found her evidence generally credible and if she had evinced a less than careful approach in swearing the affidavit verifying the claim, there was no questioning of her as to what, if any, explanation was given to her about that particular litigious process. In other words, it did not materially diminish her credibility. My general impression of her was that she was, with no disrespect to her, unsophisticated and largely ignorant on the subject of costs recoveries from litigation. This was so notwithstanding some prior experience, subject to the proceeding she had litigated in this Court; which has generated the current dispute. 2. Mr Ranson was a good witness. He listened carefully to and answered each question of him succinctly; and was not self-conscious in doing so. 3. For reasons that will shortly become apparent, the issues for determination scarcely turn upon questions of credit. The action for money had and received What constituted the costs agreement? 1. I find that on 13 March 2015, an 'offer' was made to the plaintiff on the subject of costs by the provision of two alternative costs agreements: one a conditional costs agreement; the other a standard version. A term of the offer was that if the former version was not executed by Ms Todorovska and returned to the Firm, the standard version of the costs agreement would apply. The effect of this was that unless Ms Todorovska took proactive action, the standard version would apply to govern the parties' rights and obligations with respect to costs. 2. Ms Todorovska did take proactive action when, on 4 May 2015, she executed the conditional costs agreement and returned it to the Firm. Had she not done so, the standard version would have applied. But it is not material in circumstances where the Firm did not render any invoice for the charges prior to 4 May 2015 and even if it did, the charge out rates (in cl 5) were the same in each version; so too was cl 18. But having entered the conditional costs agreement, it could not be the case that the standard version had any concurrent operation. Plainly, if it did, it would generate conflict between the two versions; where one basis for charging was contingent (upon a successful outcome) and the other was not. The invoice rendered by the Firm was consistent with the terms of the conditional costs agreement having been entered into on 4 May 2015. 3. The Firm's conditional costs agreement was entered into with Ms Todorovska on 4 May 2015. Mr Todorovska did not challenge the validity of the conditional costs agreement and I accept Ms Castle's submissions that it complies with the necessary requirements for conditional cost agreements; subject to the contested issue regarding the disclosure requirement to which I now turn. Were the disclosure requirements under Regulation 116 discharged? 1. There are three questions here. The first (referable to Regulation 116(4)) is when the disclosure requirement was made (the temporal requirement). The second question (referable to Regulation 116(3)) concerns the content of the disclosure requirement; and how much of it satisfied the regulatory requirement (the content requirement). The third question, (referable to Regulation 116(6)), following from the second, concerns whether, to the extent that there was any non-compliance with the requirement of content, is whether the Firm became disentitled to rely upon the contracting out provision in s 339 of the Act. This is a consequence of no, or inadequate, disclosure. Of course, the last question is not reached unless the content requirement is not complied with. 2. As to the temporal requirement, the disclosure requirement was made on 13 March 2015 when the letter was sent, which enclosed (both versions) of the proposed costs agreement, which, contained cl 18. Contrary to the plaintiff's Counsel's submission, I do not see why it was not sufficient for the Firm to rely upon cl 18 of the proposed costs agreement (on either version) supplied to Ms Todorovska on 13 March 2015 as satisfying the posited requirement that the costs disclosure must precede the entry into the costs agreement which was entered into on 4 May 2015. Before 4 May 2015, cl 18 was in only a prospective costs agreement. Counsel for the Firm ultimately submitted that compliance with cl 18 of what became the costs agreement was sufficient without needing to rely upon the separate 'notice' supplied to Ms Todorovska. In the circumstances, it is unnecessary to consider whether the additional 'notice' complied with Regulation 116; still less, why the Firm thought it necessary to supply the notice to the plaintiff. 3. The written disclosure was made before or as soon as practicable after the Firm was retained and before the date when the costs agreement was entered into, for the purposes of Regulation 116(4). 4. As to the content requirement, this, to my mind, is the real issue in the case. A question of construction arises. Context 1. The issue of what a solicitor needs to disclose to a client in relation to solicitor-client costs, in comparison to what a client, if successful, may recover in recoverable party-party costs, has been a subject of legislation and regulation in this State since at least the middle of the 1980s. 2. The issue surfaced again when in the early part of this century, Parliament enacted the CL Act. That Act primarily, although not exclusively, was driven by a legislative concern about an 'insurance crisis' associated with rising premiums in connection with small (in quantum) public liability claims. This resulted in very substantial changes affecting substantive entitlements to recover damages of the kind reflected in Parts 1A and 2 of that legislation. But an inseparable part of the concern was that a large part of what insurers in such claims had to pay to claimants was the legal costs of claimants. Legislators appeared to appreciate that it would frustrate the main object of reducing (if not actually extinguishing) damages for small claims, and therefore premiums on insurance policies, if the subject matter of the recoverability of party and party costs was left untouched. 3. The legislative solution accordingly comprised a general cap on the recovery of party and party costs in small damages claims. The same restriction applied to what plaintiff's solicitors might recover from their clients (s 338(1)(a)). The line, in this sense, was drawn at the sum of $100,000 (for damages or a settlement sum). As Counsel for Ms Todorovska argued, for legal practitioners, the effect of the changes were disastrous. A potential gap was left between what the client, who had a small, but meritorious claim, could get back by way of costs from the defendant and what obligation, if any, it might have to pay its own solicitor's costs. This had consequences for the practitioners in plaintiff's law firms and claimants alike. Some clients' claims for damages became uneconomic. In instances where it was touch and go whether a claim for damages might exceed $100,000, and with statutory caps on the recovery of costs, the situation would arise that a small claim apparently requiring the investiture of time would present a dilemma for practitioners: it would not be worth the trouble for plaintiff's law firms to run an action where costs recovered from the other side would be capped at $20,000 and the solicitor for the claimant could not recover anything more from the client in solicitor and client costs. That might carry the consequence that plaintiffs with small claims could not receive representation. For clients, it may not be worth running the risk of bringing an application for a relatively small amount of damages (thereby exposing the claimant to an adverse order for costs if s/he lost) if the costs s/he had to pay his or her solicitor substantially exceeded the maximum costs recoverable from the defendant (insurer); eating into the (already modest) fruits of a successful claim, represented by the order for damages or an amount recovered in a settlement. 4. The second part of the legislative solution was to permit solicitors and clients to negotiate so as to permit the solicitor to charge, as in the ordinary course, without being fettered by the statutory cap. The key precondition to this facility was 'disclosure'. If legal practitioners could, in effect, eat into a slice of a small damages payout or settlement sum, beyond what the client recovered on a party and party basis, that result could only be justified if it disclosed certain things to the client in advance of the entry into the costs agreement. Purposes 1. These statutory purposes were summarised in some authorities. In Newcastle City Council v McShane (No 3) (2005) 65 NSWLR 155 at [23], Mason P (Giles JA and Hunt AJA agreeing) said that the "obvious purpose" of what was to become Div 9 of the Act was to promote efficiency on the part of the legal profession and to contain claims costs. Mason P also accepted the submission by one of the parties in that case (at [24]) that the intent of the capping provision was that: "(t)he lawyers representing both plaintiff and defendant in small personal injury claims …. would know from the outset that recoverable fees as between the parties would be capped as provided … if the amount ultimately recovered on the claim did not exceed $100,000. The lawyers could protect themselves and their clients in three broad ways: first, by negotiating a costs agreement as between lawyer and client (s198E); secondly, by making a reasonable offer of compromise (s198F) and thirdly, by seeking a limiting order at the end of the process in a proper case (s198G). Beyond this, the legal services garment would have to be cut to suit the cloth." 1. Mason P's statement of purpose was approved by the Court of Appeal in State of NSW v Avery (2016) 92 NSWLR 141 per Sackville AJA (McColl JA and Simpson JA agreeing) at [64] & [84] in its application to the provisions now in question. Earlier (at [63]), his Honour, after noting the potentially "blunt manner" in which s 338 may operate, also echoed what Mason P had said in Newcastle City Council, that lawyers and clients could protect themselves in one of three ways; with one of those ways being relevantly a costs agreement under s 339. At [73], Sackville AJA spoke again about the way in which a law practice may protect itself in trying to mitigate the operation of s 338. Regulation 116 was designed to put regulatory flesh upon the bones of s 339. 2. So far, what I have written speaks to the context in which Regulation 116 came into being. This case puts into focus what is really required by disclosure in this context. 3. Not all that long before the CL Act came into being, and ss 338 and 339 of the Act were enacted, it might be said that was something of a philosophical vogue for 'disclosure' amongst legislators. It was apparent, for example in the very different context of Part 7.7 of the Corporations Act 2001 (Cth). The working hypothesis seemed to be that if information was disclosed to retail investors, then they might make informed and therefore better decisions about the making of investments. [6] Another hypothesis, or drafting technique, evident in Part 7.7, which is reminiscent of ss 338 and 339 is to define concepts in generic terms, and then provide specific 'inclusive' examples (and, in that legislation, also specific exclusions [7] ). A feature of the scheme under the Corporations Act is that it distinguishes between a disclosure obligation (the provision of information in prescribed documents) from a separate advisory obligation (the provision of a statement of advice). [8] 4. A not dissimilar technique is, in my opinion, at play in relation to ss 338 and 339 of the Act. If a solicitor wanted to take himself or herself outside the ambit of s 338, and effectively take away a protection for the client (a cap on costs) he or she had to disclose information to the client. Text 1. In respect to what I call the content requirement, Regulation 116(2) and 116(3) both fall to be considered. Regulation 116(2) sets out a generic requirement of disclosure: information must be disclosed "in relation to the effect of the costs agreement in connection with the operation of Division 9 of Part 3.2 of the Act." Regulation 116(3) then provides five categories of information which "must" be "include(d)" in the disclosure document. 2. Because of the determination I have made that the prospective costs agreement supplied to Ms Todorovska (either version) on 13 March 2015, by cl 18, purported to set out the disclosure requirement, this essentially pulled the rug under the plaintiff's attack on the adequacy of the separate notice supplied on the same day. As indicated, Counsel for the Firm relied upon the content of cl 18 (and cl 5) of the prospective costs agreement; effectively eschewing reliance upon the notice itself as being the document that the Court should analyse for the purpose of determining whether the disclosure requirement in Regulation 116(3) was discharged. 3. Ms Castle's detailed account in her written submissions (especially her table in paragraph 57) of how cl 18 (or cl 5) did in fact, satisfy each and every one of the requirements in Regulation 116(3)(a)-(e) was not seriously disputed by Mr Baran. I accept therefore that: 1. Regulation 116(3)(a) is satisfied by cl 18(a) and (c) of the costs agreement; 2. Regulation 116(3)(b) is satisfied by cl 18(a) of the costs agreement; 3. Regulation 116(3)(c) is satisfied by cl 18(c) of the costs agreement; 4. Regulation 116(3)(d) is satisfied by cl 5 of the costs agreement; and 5. Regulation 116(3)(e) is satisfied by cl 18(c) of the costs agreement. The real issue of construction 1. Instead, Mr Baran submitted that whether or not Regulation 116(3) was discharged, Regulation 116(2) was not. The parties are divided as to whether Regulation 116(3) is exhaustive of what the law practice must disclose for the purposes of Regulation 116(2): the Firm says it is and Ms Todorovska says it is not. 2. As I understood his submissions, Mr Baran contends that it was incumbent upon the Firm to have disclosed to Ms Todorovska, prior to entry into the costs agreement, that the Firm was not prepared to abide by the statutory cap, but as a condition of its representation of her, required her entitlement to costs to be governed by a costs agreement enabling the Firm to recover more than the cap, as permitted under s 339(1). An immediate difficulty with that contention is that, in my view, paragraph 18(c), and especially the last sentence, read in context with the rest of the sub-pages, of the costs agreement is substantially in accordance with that term, or at least that is the effect of it. So the issue, on one view, becomes how well the requirement in Regulation 116(3)(c) was explained to the client by the Firm, and understood by her. Ms Todorovska's real complaint is that its effect was not explained, that she did not understand it and that the Firm did not take any, or any adequate steps, to enable her to understand the Firm's position. 3. In ordinary parlance, the word 'include' is not usually taken to be exhaustive. The drafter of Regulation 116(3) did not, in contrast, select a word like 'comprise'. It is not to the point that the drafter did not add the words 'without limitation' after 'include', since those words do not alter the meaning of 'include'. Nor is it apparent to me why there would be scope for the tenet of construction that the expression of one thing implies the exclusion of others [9] . Courts are generally very cautious about applying that maxim [10] . Counsel for the Firm argued that there was scope for the maxim that 'general matters are constrained by reference to specific matters' [11] . But that maxim only applies where a 'genus' can be ascertained in the first instance [12] . What one sees in Regulation 116(3) is a miscellany of matters which have to be disclosed with no apparent unifying meaning. I do not see the circumstance of close prescription of what is required to be disclosed under Regulation 116(3) precluding, in principle, any other disclosure requirement in Regulation 116(2). 4. To some extent, I accept Mr Baran's submission that Regulation 116 has the flavour of being a 'consumer protection' measure. The Premier, in his Second Reading Speech for the relevant bill on 28 May 2002, said as much. The Premier also said, more generally, that the provisions were intended to "contain legal costs, while protecting clients". Aspirational statements of that kind, however, have to be treated with caution. 5. Section 338 and 339 of the Act, and consequently Regulation 116, serve multiple purposes and has been said on more than one occasion, it is rare that a single legislative purpose is pursued at all costs [13] . 6. The vexed question remains, how much beyond satisfaction of the content of Regulation 116(3) was the legal practice required to go? In particular, did Regulation 116(2) require the legal practice to advise or inform or warn a prospective client that it would not be prepared to act for him or her unless he or she was willing to agree that the Firm would not be bound by the statutory cap and that, in effect, if he or she wanted a solicitor that was willing to be bound by the statutory cap, she should go to some other solicitor? If not, what if anything, else was the legal practice required to disclose under Regulation 116(2) beyond what was disclosed under Regulation 116(3)? 7. The requirement under the regulation is still to disclose "information". I accept, for present purposes, the definition of "to disclose" that was adopted by Bryson J in Hogarth, being to 'open up' or, put another way, to bring a matter to another person's attention. That matter is "information". The concept of "information" is broad, but in its ordinary meaning the expression carries the connotation of imparting facts with the objective of developing or enhancing knowledge. Regulation 116, by its terms, in contrast speaks only of disclosure – not 'advice'. As a textual matter, in legal terms, 'information' means something different to 'advice'; even if that distinction has, in more recent times, been eroded in other contexts [14] . A perennial concern about a philosophy of disclosure is how well the information is understood. This is where arguments arise about the desirability of an advisory obligation, to supplement disclosure requirements. 8. As I have said, Ms Todorovska's complaint is not so much an absence of information that was imparted, or revealed, to her. She received that in cl 18 (and cl 5) of the prospective costs agreement supplied to her on 13 March 2015 but, rather, the absence of accompanying explanation, advice, or even warning. It is of some significance that the thrust of Mr Baran's attack was upon the content of the explanatory notice, rather than the content of what was disclosed in cl 18 (or cl 5). As her case was presented, according to her version, what she was seeking was not information, much of which she had, but interpretation of it. Textually, however, this is to strain the meaning of the obligation to disclose information. As I mentioned earlier, for the sake of comparison, the scheme for protection of retail investors contained both disclosure and advisory obligations. Regulation 116 does not obviously import advisory obligations. 9. There are several contextual matters which require consideration. First, Regulation 116 is concerned about the disclosure of information as part of a bargaining process, on the subject of costs, between prospective solicitor and prospective client. Whatever be their bargaining strength, both prospective contracting parties are treated as being entitled to act in their own interests. The circumstance that the solicitor was already in a fiduciary relationship with Ms Todorovska by entry into the retainer on 13 March 2015 before the costs agreement was entered into does not operate to suggest any positive obligation to disclose information in the intervening period [15] . As it happens, the purported disclosure was made at or shortly after the retainer and before the costs agreement was entered into nearly two months later. Nor, for that matter, was the Firm in the analogous position of having the kind of obligations of parties preceding entry into a contract of insurance. [16] 10. The second contextual matter is, as Counsel for the Firm suggested, the need for an expansive construction for the word 'information' was (and remains) reduced when clients have the capacity to apply to set aside costs agreements for reasons such as not receiving adequate explanation or advice about the meaning of terms in a costs agreement. Then, as now, the provisions in ss 338 and 339 and Division 9 of the Act should be construed against other provisions in the Act, such as the provisions concerning the assessment of costs [17] . Similarly, the requirement to disclose information is at quite a level of removal from an obligation to adequately explain information. There is a real question whether it is appropriate to engraft an advisory obligation in a regulation when by the legislative framework, a client has the means to complain about costs in an alternative process. This is not, as Counsel for Ms Todorovska submitted, to say that she is denied the opportunity of recourse to the Court, but was confined to the assessment process. It is relevant to the question whether it is necessary to strain the ordinary interpretation of Regulation 116(2). In my view, this alternative weighs against an expansive construction. The natural forum for complaints that information was not explained is, as Counsel for the defendant argued, the costs assessment process; where multiple criteria exist to illuminate the quality of advice about costs. 11. Thirdly, Regulation 116(6) is, by its terms very onerous for legal practices. It provides a natural deterrent to legal practices who do not conform to the requirements in Regulation 116(3). But a virtue of Regulation 116(3) is that, however awkward it may be for a legal practice to express the concepts (in (a)-(e)) in practice, they at least provide some measure of certainty to the legal practice that it will obtain the capacity to contract out of the cap if the requirements are complied with. Regulation 116 is intended to be understood in a practical way. That being so, it is a well-established principle for the interpretation of delegated legislation that the Court should adopt an interpretation leading to a reasonably practical result [18] . To require the legal practice to fall under some amorphous advisory obligation under Regulation 116(2) on pain that it will lose its entitlement to charge for additional costs negotiated would not serve a 'consumer protection purpose'. It might even consequently mean that a lawyer may not wish to act at all; since the legal practice would not know what, in addition to Regulation 116(3) it was required to disclose. Rather, to the extent that Regulation 116(2) required some more substantive, but uncertain obligation of a legal practice, the regulation would likely have a punitive effect. 12. I agree, further, with Counsel for the defendant's submission that it would be wrong to construe s 339 (and Regulation 116) by reference to later amendments. Plainly, the later amendments were intended to effectuate a substantial change in the provision for disclosure; arguably, moving it closer towards an obligation importing an advisory component. But the parties' rights and obligations in March 2015 were solely governed against the then subsisting statutory and regulatory framework. 13. Ultimately, the disclosure requirement in Regulation 116(2) should not be construed as expansively as the plaintiff argues. Whilst that might be questionable from a purely consumer protection or other policy perspective, and might even reveal a limitation upon the regulatory philosophy underpinning the 'disclosure' requirement, ultimately, that conclusion represents the Court's construction of the disclosure requirement, as it was at the operative time. 14. For these reasons, I am not persuaded that there was anything more that the Firm was required to disclose to Ms Todorovska, prior to the entry into the costs agreement on 4 May 2015, which had not already been disclosed, in conformity with the Firm's obligation under Regulation 116(2). In other words, a valid costs agreement was entered into for the purposes of s 339(1) of the Act. In the result, the cap under s 338 did not apply. It is unnecessary to consider the operation of Regulation 116(6). 15. This being so, the claim for money had and received, centred as that claim is upon the unjustified retention of monies contrary to a statutory (and regulatory) obligation or, as was alternatively put, an overpayment made by Ms Todorovska to the Firm by mistake, fails. The breach of contract claim 1. It is, as the defendant submitted, trite that the award of substantial damages for breach of contract, firstly, depends upon proof of not insubstantial damage and, secondly, is intended to place the promisee in the position as if the contractual obligation was performed – the so-called expectation or performance interest. [19] 2. Neither of those principles assist the plaintiff here. I agree with the defendant that the analysis for calculation of damages has to proceed upon what would have occurred had the promise been performed. On that basis, the promisee has to take both the benefit and the burden of the performance of the obligation. There was no dispute about Ms Castle's calculations, referred to above. They reveal no substantial loss. Nevertheless, they do reveal a deficiency, contrary to the contractual requirement and was not disclosed to Ms Todorovska thereby entitling her to nominal damages [20] . She should receive an award for nominal damages of $100. Costs 1. The plaintiff's insubstantial success on her contract claim did not justify her suit; she did not receive an award for substantial damages. Further, such moderate success was only achieved as a result of a late amendment. She lost on her action for money had and received which was the overwhelming dominant action contested and determined. Orders 1. I make the following orders: 1. Judgment is entered for the plaintiff for the sum of $100. 2. The plaintiff is to pay the defendant's costs, as agreed or assessed. 3. Exhibits are to be returned within 28 days. ********** Endnotes 1. That is, one governed exclusively by the Civil Liability Act 2002 (NSW) ('CL Act') and not other statutory schemes, such as the Motor Accidents Compensation Act 1999 (NSW) or Workers Compensation Act 1987 (NSW). 2. Hogarth v Gye [2002] NSWSC 32 ('Hogarth') per Bryson J at [26] citing Lord Lowry's definition of "to disclose" in Attorney-General v Associated Newspapers Limited [1994] 2 AC 238 at 255 3. Section 328(2) of the Act 4. The defendant cited Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087 and Coshott v Barry [2012] NSWSC 850 5. This was unlike other prescribed formulations, such as s 309(3) that were in the Act 6. Commonwealth of Australia, Financial Systems Inquiry Fixed Final Report (1997) 235. 7. See for eg Division 3 of Chapter 7 of the Corporations Act 8. Other regimes of 'disclosure' obligation in companies are referred to in G North, Company Disclosure in Australia (2013, Lawbook Co.) 9. 'expressio unius est exclusio alterius' 10. Eg Houssein v Under Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 at 94 11. 'ejusdem generis' 12. R v Regos (1947) 74 CLR 613 per Latham CJ at 624 13. CFMEU v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40] 14. For example, the scope of recovery for loss in professional negligence cases: see Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 at [22] 15. Breen v Williams (1996) 186 CLR 71 at 113, 137-138; Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 at [74] 16. Carter v Boehm (1766) 97 ER 1162; Insurance Contracts Act 1984 (Cth) s 21(1) (for an insured). 17. Pt 3.2, Division 11 of the Act 18. Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 per Lord Reid at 993-4. 19. Clark v Macourt (2013) 253 CLR 1 at [7], [11]. [26], [60], [106]. 20. Chappel v Hart (1998) 195 CLR 232 at 270, 290. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2021