By Michelle Castle and Andrew Bailey -
Snapshot
- A failure to give adequate costs estimates is capable of sounding in damages, on the basis of breach of contract, misleading and deceptive conduct, negligence and breach of fiduciary duty.
- Where, on costs assessment, a client asserts that a claim for costs is defeated by a solicitor’s negligence, a costs assessor may or may not have jurisdiction to determine that issue.
- Where the damage caused by the solicitor’s negligent work is simply the costs, an assessor may deal with the negligence. Where the negligence has consequences beyond the costs claimed, the matter may properly be one for a cross-action.
The recent decision in Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303 (‘Burrell’) highlights the importance of solicitors giving diligent attention to the provision of costs estimates. In the judgment, White J examines the extent to which a solicitor’s failure to give adequate estimates of costs is capable of sounding in damages.
The case also considers, in obiter dictum, the extent to which a costs assessor can deal with an allegation of negligence on a costs assessment.
