Allwood v Peter Vivian Benjafield t/as Benjafield & Associates Lawyers

[2014] NSWCA 355

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Appeal to District Court against costs assessment
4. › Whether lack of standing of beneficiaries to prosecute costs assessment was basis for setting aside determinations of costs assessor and review panel
5. › Supreme Court Act 1970 (NSW), s 69
6. › Legal Profession Act 2004 (NSW), ss 350, 356, 384
1. Succession
2. › Executors and administrators
3. › Conflict of interest
4. › Executor who is also solicitor against whom costs assessment prosecuted
5. › Duties of executor in position of conflict
6. › Whether executor should have taken steps to enable costs issue to be properly resolved
1. Costs
2. › Assessment of legal costs
3. › Standing to apply for costs assessment
4. › Whether beneficiaries of estate had standing under Legal Profession Act 2004 (NSW)
5. › Whether right to have invoices assessed survived death of client
6. › Legal Profession Act 2004 (NSW), ss 350, 356

Quick Take

A costs assessment determination made under the Legal Profession Act 2004 (NSW) is not invalidated merely because a party who participated in the assessment lacked standing, where the initial application was validly made and no unfairness resulted. An executor who is also the solicitor whose costs are being assessed is in a clear position of conflict and should take steps to enable the costs issue to be properly resolved rather than adopting an obstructionist stance based on standing technicalities.