Supreme Court New South Wales Medium Neutral Citation: Oliveri v P M Sulcs & Associates Pty Ltd [2012] NSWSC 1198 Hearing dates: 28 September 2012 Decision date: 28 September 2012 Jurisdiction: Equity Division Before: Gzell J Decision: Appeal dismissed. Catchwords: PROCDURE - Costs - interest on assessed costs - Legal Profession Act 1987 (since repealed), s 190(2) provided that a barrister or solicitor might not charge interest on unpaid costs unless the bill of costs contained a statement that interest was payable and of the rate of interest - no statement on bill - 4 documents served together - a document described as a cost agreement contained the statement - Legal Profession Regulation 2002, r 45(3) provided that a bill of cost might comprise more than one document - whether the 4 documents read together constituted a bill of costs with the required statement Legislation Cited: Legal Profession Act 1987 Legal Profession Regulation 2002 Cases Cited: PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456 Category: Procedural and other rulings Parties: Dominic Oliveri (Appellant) P M Sulcs & Associates Pty Ltd (In Liq) (Respondent) Representation: Counsel: M Rollinson (Appellant) Solicitors: Purcell Felton Lawyers (Appellant) O'Neill Partners (Respondent) File Number(s): SC 2011/66565 EX TEMPORE Judgment 1There is before the court an appeal from a determination of a costs assessor. The appeal is brought under the now repealed Legal Profession Act 1987 (the Act), which was the applicable legislation at the material time. Section 208L limits an appellant to a matter of law arising in the proceedings. 2The appellant, Dominic Oliveri, had the determination of the costs assessor referred to a review panel under s 208KA of the Act but the determination of the costs assessor on the issue in question stood. 3That issue is whether Mr Oliveri is entitled to interest on the assessed costs. 4Section 190 of the Act, so far as is relevant to this appeal, provided: "(1) A barrister or solicitor may charge interest on unpaid costs for legal services provided by the barrister or solicitor, if the costs are unpaid 30 days or more after the barrister or solicitor has given a bill of costs for those services in accordance with this Division. (2) A barrister or solicitor may not charge interest on the unpaid costs for legal services unless the bill of costs for those services contains a statement that interest is payable and of the rate of interest." 5On 20 February 2003, four documents were served on the respondent, P M Sulcs & Associates Pty Limited (in Liq). The first document was a covering letter signed by Mr Oliveri which contained the following: "We refer to the above matter and now enclose our application for assessment of our solicitor client bill." 6The second document answered the former description. It was an application by practitioner for assessment of costs other than party/party costs in prescribed form 2. 7The document stated that the costs, the subject of the application, were included in Mr Oliveri's bill of costs dated 10 February 2003, which was attached. The document further stated: "There is a costs agreement between the client and myself oral in the first place based on the client's previous solicitor's costs agreement and later a new costs agreement post-dated 5 July 1998." 8The third document was headed "Costs Agreement between Solicitor and Client". It contained as paragraph 8 the following: "At the expiry of 30 days after a bill of costs is given to you, interest, at the rate specified in the Act, variable at Supreme Court scale (currently 10.5% per annum) will be charged on any amounts unpaid." 9The fourth document answers the description of the enclosed bill of costs. It was headed in the name of the matter and below that was described as: "Solicitor client bill @ $500 per hour." The legal services, the time taken, the rate and the amount billed were then itemised. 10Section 193(1) of the Act provided that the regulations might make provision for or with respect to the form of, and the particulars to be included in, bills of costs. Section 193(2) of the Act provided that a bill of costs might be described as a memorandum of fees or in any other way authorised by the regulations. 11There was no regulation. In that absence the fourth document was sufficiently described to constitute a bill of costs. 12Section 194(1) of the Act provided that a bill of costs must be signed by the barrister or by the solicitor or by his or her partner or employee. But it was sufficient compliance with the section if a letter that was so signed was attached to, or enclosed with, the bill of costs. 13Whether or not the bill of costs was signed by Mr Oliveri, the covering letter was. The bill of costs answered the requirements in s 194(1) of the Act. 14In PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456, Debelle AJ held that the third document was not a costs agreement. As a result, costs were assessed on a quantum meruit basis. 15The question is whether the reference to the interest charge in that document answers the requirement in s 190(2) of the Act. 16It was submitted that the four documents read together constitute the bill of costs. That submission was based upon the Legal Profession Regulation 2002, r 45(3) (the Regulation). It provided that a bill of costs might comprise more than one document. 17The costs assessor said that he did not accept the submission that the four documents read together satisfied the requirement of a written claim for interest and, in any case, a costs agreement found in the judgment of Debelle AJ not to be a costs agreement could not assist to comply with the interest requirements of the Act. 18The costs assessor said that he had no jurisdiction to award interest, but he certainly would award interest if he had jurisdiction. 19The review panel was more blunt. It said: "To support the claim for interest, there would have had to have been a Costs Agreement or sought in the 'Bill'. There was no Costs Agreement. There is no basis upon which to award interest. This Review Ground has been rejected." 20The decision of the costs assessor raised a question of law as to the proper interpretation of the sections of the Act and the Regulation and the appeal is open to me under s 208L of the Act. 21It was submitted before me that the four documents when read together answered the requirement in s 190(2) of the Act that a statement that interest is payable and of the rate of interest must be contained in the bill of costs. 22There is no authority on this issue and as Mr Rollinson, who appeared for Mr Oliveri said, it is ultimately a question of impression. 23The purpose behind the requirement of a statement as to interest in a bill of costs under s 190(2) of the Act was to ensure that the recipient of the bill was forewarned that a claim for interest might be made at the specified rate if the bill was not paid. 24In my view, that purpose is not achieved if a number of documents are provided to a client, and the reference to a claim for interest is only discovered by trawling through the documents. 25When the Regulation states that a bill of costs may comprise more than one document, it seems to me that what is implied is that the documents in combination constitute a bill of costs. That suggests that additional documents must complement a primary document that has the function of conveying the amount of costs billed and which contains the required statement. Collectively the documents must contain all the elements of a bill of costs. An example would be a document that gives a summary of the costs billed together with documents containing a detailed itemisation of the billed costs. 26Here, four disparate documents were served. One answered the description of a bill of costs. The other three did not. Taken collectively they each retained their individual identities. They did not form a combined identity and they did not complement the bill of costs or constitute it. 27There was a failure to comply with s 190(2) of the Act and Mr Oliveri is not entitled to interest on his assessed costs. 28The application is dismissed. The exhibits and any subpoenaed material are to be returned forthwith. ********** 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: 08 October 2012