Robinson v Baker [2011] NSWSC 193

Supreme Court New South Wales

Medium Neutral Citation: Robinson v Baker [2011] NSWSC 193 Hearing dates: 22 March 2011 Decision date: 24 March 2011 Before: Harrison J Decision: 1. Order that, subject to order 2 below, the plaintiff's application for assessment pursuant to s 350 of the Legal Profession Act 2004 of the defendant's costs rendered in a tax invoice dated 9 September 2009 be dealt with by the costs assessor notwithstanding the expiration of a period of 12 months prior to the making of the application. 2. Direct that any application by the plaintiff for an assessment of the defendant's costs be filed with the Court by the plaintiff or on her behalf not later than 7 April 2011. Catchwords: COSTS - application for assessment of legal costs after 12 months - Legal Profession Act 2004 s 350(5) - whether "just and fair" for the plaintiff's application for assessment of the defendant's legal costs to be dealt with after the 12 month period - application granted Legislation Cited: Legal Profession Act 2004 Cases Cited: Ciaglia v Beilby Poulden Costello Pty Ltd [2010] NSWSC 748 Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895 Category: Principal judgment Parties: Margaret Ann Robinson (Plaintiff) Victoria Baker (Defendant) Representation: Counsel: J C McDonald (Plaintiff) G F Mahony (Defendant) Solicitors: North & Badgery (Plaintiff) McIntosh, Emerton & Thomas (Defendant) File Number(s): 2010/403214

Judgment 1HIS HONOUR : The plaintiff retained the defendant in late May 2009 as her solicitor to perform legal work with respect to a claim under the Family Provision Act 1982 . The defendant performed legal work for the plaintiff over a period of approximately two months until her retainer was terminated in late July 2009. The defendant sent the plaintiff a tax invoice for her fees on 4 August 2009 in the sum of $9,943.87. On 12 August 2009 the plaintiff asked the defendant to provide her with an itemised bill of costs. The defendant provided that itemised bill to the plaintiff on 9 September 2009 in the sum of $20,228.87. The plaintiff did not make an application to the Court for an assessment of those costs within 12 months of receiving the itemised bill and now seeks an order pursuant to s 350(5) of the Legal Profession Act 2004 that her application for assessment be dealt with after the 12 month period for which the section provides. 2Section 350 of the Legal Profession Act is in these relevant terms: " 350 Application by client or third party payers for costs assessment (1) A client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of legal costs. (2) A third party payer may apply to a costs assessor for an assessment of the whole or any part of legal costs payable by the third party payer. (3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid. (3A) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment. (4) An application by a client or third party payer for a costs assessment under this section must be made within 12 months after: (a) the bill was given or the request for payment was made to the client or third party payer, or (b) the costs were paid if neither a bill was given nor a request was made. (5) However, an application that is made out of time, otherwise than by: (a) a sophisticated client, or (b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may be dealt with by the costs assessor if the Supreme Court, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period. (6)..." 3For the reasons that follow, I consider that it is just and fair for the plaintiff's application for assessment of the defendant's costs to be dealt with after the 12 month period that expired on 9 September 2010.