Cohen v Fung [2024] NSWDC 228

District Court New South Wales

Medium Neutral Citation: Cohen v Fung [2024] NSWDC 228 Hearing dates: 14 June 2024 Date of orders: 26 June 2024 Decision date: 26 June 2024 Jurisdiction: Civil Before: Cole DCJ Decision: (1) These proceedings are dismissed. Legislation Cited: Legal Profession Uniform General Rules 2015 Legal Profession Uniform Law Application Act 2014 Legal Profession Uniform Law (NSW) Cases Cited: Dive Lawyers Pty Ltd t/as Dive Lawyers & Notaries v The Manager, Costs Assessment [2024] NSWSC 721 Malvina Park Pty Ltd v Johnson [2019] NSWSC 1490 Category: Principal judgment Parties: Andrew Cohen (Plaintiff) Jacqueline Fung (Defendant) Representation: Counsel: Ms E Cohen (Plaintiff) Ms M Castle (Defendant)

Solicitors: Mr D Sisinni (Plaintiff) Harrow Legal (Defendant) File Number(s): 2023/251631 Publication restriction: Nil

JUDGMENT 1. Mr Cohen, a solicitor, has brought proceedings against Ms Fung, his former client, claiming the payment of fees and disbursements that he alleges were incurred in connection with the legal services he provided to her. 2. This judgment concerns an application by Ms Fung, filed on 7 March 2024 for the dismissal of Mr Cohen's proceedings against her together with costs. This judgment also concerns an application by Mr Cohen for summary judgment on the Amended Statement of Claim, which was filed on 24 April 2024.

Background 1. Mr Cohen acted for Ms Fung in Local Court and Family Law proceedings from March 2018 until about July 2020. 2. In March 2018, Mr Cohen provided Ms Fung with a "Standard Costs Disclosure" ('SCD') mistakenly dated March 2017. The SCD gave a brief description of the matters in relation to which Mr Cohen would act for Ms Fung. The SCD set out the hourly rates which were to be applied to work performed for Ms Fung. 3. In the section of the SCD entitled "COSTS-ESTIMATES", an estimate of costs of all of the anticipated work was not given. The following mixture of pro-forma text and added text was set out: 6. COSTS-ESTIMATE The following ESTIMATE is based on the information available to us to date. It is an estimate, not a quotation and subject to change. Either: 6.1. I estimate the cost of the work to be presently inestimable, as there might well be a number of steps, and negotiations can be of any length, and mediation may still be an option, notwithstanding that there are already a series of matters to which you have instructed me and which I agree require legal representation, as discussed above and for which I am honoured to take your instructions and provide advice. I can estimate individual parts of the work I can do for you, but even that is unpredictable, as for example, if an ADVO is not feasible, then if it is, how much assistance you Will need, cannot be predicted, with any sort of accuracy. [sic] I recommend that we discuss the cost of steps, as they arise. Professional fees: up to NO ESTIMATE (estimate) +GST** Charges: $TBA mostly travel phone and paper related Disbursements subject to GST: TBA, plus travel expenses and barrister's fees if applicable SUBTOTAL: no estimate + GST** any disbursements GST free Disbursements: $TBA such as court fees TOTAL (GST inclusive exclusive): no estimate + GST** 6.2. **It is not possible at this time to provide an accurate estimate of the total costs. Instead a range of estimates is provided. There may be a number of stages in your matter, which will vary according to its complexity, but may broadly be divided into: [there follows a description of work which it was anticipated might arise, including a property issue, in relation to which an estimate of $4,000 to $10,000 was given.] 1. On 21 March 2018, Mr Cohen issued invoice 18/20 in the sum of $8,360 for professional costs. Ms Fung paid this invoice on 22 March 2018. 2. On 29 May 2018, Ms Fung deposited the sum of $100,000 in Mr Cohen's office account, at his request. On 30 May 2018 Mr Cohen issued an invoice for $25,000 and refunded $75,000 to Ms Fung. Mr Cohen reissued the invoice on 2 August 2018. 3. On 1 August 2018, Mr Cohen requested that Ms Fung transfer $11,000 into his account. Ms Fung says that she did not receive an invoice for this amount, but Mr Cohen said he handed it to her on 2 August 2018. 4. On 2 November 2018 Mr Cohen sent to Ms Fung by email an invoice from counsel for the sum of $10,134.62, which she paid on the same day. 5. On 17 December 2018, Mr Cohen generated an invoice for $9,900. He requested that Ms Fung pay the amount, and she did. Ms Fung says that she did not receive the invoice. 6. On 28 October 2019, Mr Cohen generated an invoice for $22,000. He sent an email to Ms Fung saying that the invoice was attached. Ms Fung says that it was not attached, but, instead, her affidavit was attached. Ms Fung paid the amount of $22,000 into Mr Cohen's account on 29 October 2019. 7. On 21 February 2020, Mr Cohen emailed a barrister's account for the sum of $4,809.92 to Ms Fung. She paid this account on the same day. 8. On 23 April 2020, Mr Cohen emailed a specialist doctor's account to Ms Fung in the sum of $2,640. Ms Fung paid the account on the same day. 9. On 12 July 2020, Mr Cohen asked Ms Fung to pay $22,000 into his office account. She paid the amount and says that she did not receive an invoice. 10. About 10 months later, on 5 May 2021, Mr Cohen sent an itemised account to Ms Fung. In an email dated 10 May 2021, Ms Fung disputed the account. Mr Cohen withdrew the account. 11. On 18 June 2021, Ms Fung received a further itemised tax invoice by express post. On the same day, Ms Fung sent an email to Mr Cohen disputing the invoice. On 5 July 2021, Mr Cohen sent an email to Ms Fung withdrawing the invoice. 12. On 13 September 2021, Ms Fung received a further email from Mr Cohen enclosing a further tax invoice dated 13 September 2021. This invoice showed a "Total before discounts" of $237,702.55, a "Total after discounts" of $211,338.55 which, after the subtraction of "Monies received from you" of $115,844.54 resulted in a "Balance due" of $95,494.01. 13. Mr Cohen asserts that he sent a further invoice to Ms Fung on 22 December 2021 in the sum of $243,902.55, less the sum of $115,884.54 paid on the interim invoices resulting in a balance due of $128,058.01. In his Amended Statement of Claim, Mr Cohen amends the amounts claimed on this invoice by subtracting the sum of $13,007.95. In his Amended Statement of Claim, Mr Cohen also seeks to claim from Ms Fung a further sum of $11,909.62 for expenses incurred by Mr Cohen between March 2018 and October 2021 "on behalf of the defendant that he failed to charge to the defendant and failed to include in any invoice" (paragraph 3A). Mr Cohen has now withdrawn that further claim.