Boutique Sydney law shop Yates Beaggi Lawyers has been ordered to refund $98,541.15 to a former client, after a costs review claim was struck out in the NSW Court of Appeal.
From 2018 to 2020, the firm acted for Adam Poche in NSW Supreme Court family provision proceedings. Poche sought an increase in his share of his late mother’s $2.3 million estate, from $129,379.50 to $600,000. His brother, Wayne Poche, the sole executor and beneficiary of most of the will, was also a party to those proceedings.
While Adam was granted an increased provision of $350,000 by the presiding Justice Trish Henry. HH approximated that his costs in pursuing the action totalled $627,110.72.
She highlighted the “inexplicable” disparity between Adam’s costs and those of his brother Wayne, which were approximated at no more than $145,000. The court capped costs orders against the brother at $125,000.
Later in 2020, Adam Poche applied to a Costs Assessor in respect of invoices paid between 2018 and 2019, totalling $366,975.03.
The assessor estimated that the fair and reasonable costs for that working period should have been $268,433.88 and decided that the $98,541.15 discrepancy should be refunded to Adam.
In 2021, the firm sought a Review Panel appeal of the assessment. Its various claims included that the assessor erroneously employed a “global”, rather than a line-by-line approach to assessing the costs.
They also claimed that the assessor relied on irrelevant considerations in determining estimations.
The panel dismissed the application and upheld the assessor’s methods and conclusions. Afterwards, the firm appealed to Judge Judith Gibson of the District Court, who also rejected its claims in 2023.
In 2024, the firm sought a judicial review in the Court of Appeal of the assessment, the panel finding and the DC decision. All three purported grounds of review were thrown out by a bench comprised of Jeremy Kirk, Kristina Stern and acting justice John Griffiths.
The first claim was that the “global” approach of the assessment was contrary to the Supreme Court case of Frumar. However, the appeal judges found that the firm’s claims were not analogous with that case, which concerned a failure to provide adequate reasons, rather than an unreasonable application of calculation methods.
The appeal bench also found that the assessor’s global approach was appropriate, especially considering that the file documents comprised some 6,000 pages.
The firm also claimed that the assessor placed unjustifiable emphasis on proportionality while assessing the costs. The panel found that significant parts of the work rendered by the firm were of poor quality and agreed that there was a distinct lack of proportion between the invoiced costs and the value of the claim.
These findings were upheld by the CA, which found that the lawyers failed to adequately advise Poche of the desirability of settling.
The third claim was that Gibson DCJ erred in refusing to allow an affidavit to be introduced as “fresh evidence” for a procedural fairness claim.
HH decided that the affidavit contained “significant omissions”, and that its significance would be “tangential” at best.
The appeal court found that HH did not err in making these findings and she did not apply the wrong test in determining whether the affidavit should be admitted.
While the assessment’s affirmation is good news for Adam Poche, the result is that, when accounting for Henry J’s original $125,000 cost order and the assessment refund, he was landed with a total bill of $403,569.57 for a $220,620.50 increase in his provision.