Skip to content

What is the just and fair test to extend time for taxation of costs in Victoria?

Costs Agreements, Billing and Estimates

The question has been addressed again by John Dixon J in the matter of Hih Hsien Lin v WJ Legal  (Aust) Pty Ltd [2023] VSC 52

Here, the law practice issued a lump sum account to the client in 2019.  Several requests for the provision of an itemised bill were made which went unanswered.  The client then, in 2019, filed a complaint with the Legal Services Board (LSB) relating to this issue.  The LSB unsuccessfully attempted to arrange a mediation between the parties in 2021 (the reasons for delay are not apparent from the judgment) with the LSB abandoning the process in July 2022.

The law practice ultimately provided an itemised bill to the client on 24 May 2022.  The summons for taxation was filed on 30 June 2022.

The client contended that the delay was occasioned by a number of factors including his involvement in the underlaying proceedings that the law practice was initially retained in.

It was left to Dixon J to form a view, pursuant to s198(4) Legal Profession Uniform Law as to what was just and fair in all the circumstances, including considerations such as the length of delay, reasons given for it, and prejudice to the respondent, noting with approval the comments of Gorton J in Del Monaco v Velos & Velos Lawyers [2022] VSC 160 that “It requires a consideration of the right of one party to seek an assessment against the legitimate expectation of the other party that any request for an assessment will be made within the statutory period”

The other considerations to be applied included those outlined in Rohowskyj v S Tomyn & Co [2015] VSC 511 being:

  • whether the client was aware of the right to seek a costs assessment;
  • whether there is evidence suggesting the bill may be excessive;
  • whether the client has paid the bill without demur;
  • the lawyer’s reasons for opposing the assessment, it being important that, as an officer of the court, the lawyer is seen to act honestly, ethically and with proper motives, not merely to prevent the assessment of a bill taking place

Dixon J further added to that list:

  • the lawyer’s conduct in dealing with the contest of the bill. For example, an unjustified reluctance to provide an itemised bill or a serious delay in providing one may tip the scales in favour of allowing an application for assessment out of time.

The application for the extension of time was ultimately granted.

Takeaway

The additional comments from Dixon J are an interesting addition to the general tests.  Not only is the failure to provide an itemised account (if requested in time) a breach of the LPUL which can have disciplinary ramifications, it can also impact on an application for extension.

 

Charles Ackroyd