Yates Beaggi Lawyers (YBL) unsuccessfully tried four times in the last three years to reverse a decision of a costs assessor to refund a former estates client $98,541.15 from a $366,957.03 bill for services it rendered between September 2018 and August 2019.

Its last attempt before the NSW Court of Appeal was not “well founded” and could be “more properly characterised as an attempt to reagitate matters which had … failed before”, Justices Jeremy Kirk, Kristina Stern and John Griffiths said in their reasons for judgment.

With YBL’s help between September 2018 to May 2020, the client increased his share in his mother’s estate to $350,000 but was soon hit with a legal bill for approximately $627,110.72.

YBL applied for a review of the refund decision in June 2021, alleging the costs assessor made arbitrary allowances for a range of categories of work, erred in applying a global approach to invoices, and failed to take into account various aspects of the client matter.

When the review panel affirmed the cost assessor’s determination, YBL turned to the NSW District Court of NSW, which found it was satisfied with both the costs assessor and review panel’s findings.

In its application for judicial review before the Court of Appeal, YBL alleged the costs assessor erred in applying a test on an assessment of costs, and this was endorsed by the review panel and the court.

YBL added the review panel and court also endorsed an error by the costs assessor in giving proportionality “a prominent role to play” in his assessment of the solicitor-client costs.

The final ground alleged that the District Court judge misapplied the Application Act in viewing the question of whether YBL should be permitted to rely on an affidavit as additional evidence on its appeal against the review panel solely “through the conceptual lens of fresh evidence as opposed to the full terms of the provision”.

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Other than the last ground, the Court of Appeal bench found YBL’s allegations were “not complaints of jurisdictional error or error of law on the face of the record” but were instead an attempt to once more question the costs assessor, review panel and District Court.

“This application demonstrates the importance of a careful focus upon the nature of the error relied upon if such applications are not to lead to a disproportionate burden upon both litigants and the court,” Justices Kirk’s, Stern’s, and Griffiths’ headnote read.

The bench said the costs assessor “carefully considered the amount at stake and the complexity of the issues” and completed a review that “supported a conclusion that excessive claims had been made”.

The review panel also considered a “vast amount of material”, and there was “no substance” in YBL’s complaint about its decision.

As for the third ground, the District Court did not allow YBL to use the affidavit because no errors were identified in it and there were “significant omissions” if the affidavits’ primary purpose was to establish there had been a denial of procedural fairness.

The Court of Appeal set out that all the primary judge said in relation to the “fresh evidence” was the claim of procedural fairness had to be determined on the basis there was none.

“That was an apt description of the circumstances given that Her Honour had already determined [the affidavit] should be ‘struck out’, which language should be understood as rejecting the application for leave to rely upon this affidavit on the appeal,” the bench said.

Justice Stern concluded that “none of the contentions” advanced by YBL in its application “are well founded”.

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

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