Yang v Stephen Paul Firth trading as Firths The Compensation Lawyers [2013] NSWSC 676

Supreme Court New South Wales

Medium Neutral Citation: Yang v Stephen Paul Firth trading as Firths The Compensation Lawyers [2013] NSWSC 676 Hearing dates: 13 April 2012, 18 April 2012, 2 August 2012, 3 August 2012 Decision date: 30 May 2013 Jurisdiction: Common Law Before: Hall J Decision: (1)An order pursuant to s 728(1)(a) of the Legal Profession Act 2004 that the defendant give to the plaintiff a Bill of Costs in itemised form in respect of the legal services provided by the defendant to the plaintiff in connection with the plaintiff's claim for work injury damages. (2)Direct that unless submissions are lodged within 21 days of the date of judgment in support of a specific order on costs, the order of the Court will be that the defendant pay the plaintiff's costs on the ordinary basis. Catchwords: COSTS - SOLICITOR - application under s 728(1)(a) of the Legal Profession Act 2004 (the Act) - whether power to order itemised bill of costs where refusal by legal practitioner to comply with request pursuant to s 332A of the Act - whether expiry of limitation period to apply for costs assessment under s 350 of the Act precludes order under s 728 being made - circumstances that may arise by reason of s 350 do not act as preclusion but may constitute relevant discretionary factors - whether accord and satisfaction precludes client from seeking itemised bill of costs - no statutory warrant to limit the power of the Court to make a s 728 order where costs have been paid in whole or in part by a client - whether proceedings an abuse of process - finding of an abuse of process requires cogent evidence before an adverse finding can be made - no evidence available to demonstrate that plaintiff had no genuine interest in the proceedings - abuse of process not established - no facts or matters that, as a matter of discretion, would require refusal of the order sought under s 728(1)(a) Legislation Cited: Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulation Uniform Civil Procedure Rules Cases Cited: Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 Bechara v Atie [2005] NSWCA 269 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Firth [2013] NSWSC 677 Dale v Firth (Supreme Court of NSW, McCallum J, 31 January 2012, unreported) Estate of Allwood v Benjafield [2009] NSWSC 1383 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 Parramatta River Lodge Pty Ltd v Sunman (1991) 5BPR 12,038 Re Majory [1955] Ch 600 Ridgeway v The Queen (1995) 184 CLR 19 Rural and General Insurance v Goldsmiths Lawyers [2012] NSWSC 358 Williams v Spautz (1992) 174 CLR 509 Category: Principal judgment Parties: Da Guo Yang (Plaintiff) Stephen Paul Firth trading as Firths The Compensation Lawyers (Defendant) Representation: Counsel: M Einfeld QC; P Bolster (Plaintiff) R Stitt QC; R Goodridge (Defendant) Solicitors: Barton Lawyers (Plaintiff) Firths the Compensation Lawyers (Defendant) File Number(s): 2012/82142