The statutory costs assessment regime under Division 11 of the Legal Profession Act 2004 (NSW) does not provide the exclusive means of challenging the reasonableness of legal costs. Where a barrister sues on a costs agreement to recover fees, the defendant may raise a defence challenging the reasonableness of the fees as a matter of contract, including by alleging an implied term that fees would be fair and reasonable. The expiry of the 60-day time limit for seeking statutory costs assessment under s 351(3) does not preclude such a defence. Section 366 of the Act preserves the court's power to determine the amount of costs payable in its ordinary jurisdiction.
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