CIVIL — defendant’s notice of motion to set aside judgment — deeming provision — where defendant asserts she is not the proper costs respondent — costs assessment — review of costs assessor’s determination — ancillary bankruptcy proceedings
Quick Take
1A judgment deemed to exist under s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW) upon filing of costs assessment certificates may be set aside under UCPR r 36.15(1) as irregular where there is a substantial unresolved question whether the person named as judgment debtor was, in their individual capacity, the client liable for the assessed costs — particularly where the legal services may have been provided to separate corporate entities of which that person was director and shareholder.
2A costs assessor's routine description of a party as 'the client' in background recitals of a Statement of Reasons, without the issue of the identity of the proper costs respondent having been substantively ventilated through submissions, does not constitute a finding of fact capable of giving rise to an issue estoppel.
3Although a judgment entered before a costs review application is lodged is not directly caught by the s 86(1) LPULAA suspension, the legislative policy that a costs determination should not ordinarily be enforced while subject to statutory review materially informs the discretion whether to set aside or stay such a judgment.
