Background
In May 2024, Ms Emma Thompson retained a law firm (Kym Chapman & Associates) and barrister to obtain advice regarding a family provision application. Ms Thompson deposited $24,000 into the firm’s trust account. The firm subsequently issued an invoice for $20,053, which Ms Thompson disputed. She contended she had retained counsel only for limited written advice, while the firm asserted it had been engaged to prepare for and appear at the full hearing.
The firm applied for costs assessment in August 2024. The costs assessor, after examining evidence from both parties, determined that the firm was engaged to prepare for the hearing and assessed costs at $14,907.53. Ms Thompson applied for review of the assessment but named the wrong party (“Kym Chapman” instead of “Kym Chapman & Associates Pty Ltd”), and the Review Panel dismissed the application on this procedural ground without reviewing the merits. A judgment for $21,845.40 (assessed costs plus assessment and review costs) was entered on 30 July 2025.
Ms Thompson filed a motion on 2 September 2025 seeking to set aside the judgment under UCPR r 36.15, arguing the costs assessment was “awash with errors” and she had been denied an opportunity to present her case before the Review Panel.
The Court’s Holding
Justice Elkaim dismissed Ms Thompson’s motion. The court held that UCPR r 36.15 permits setting aside a judgment only where the judgment itself was given or entered irregularly, illegally, or against good faith. Critically, this rule focuses on irregularities in the procedural steps leading to the entry of judgment, not on the merits of underlying decisions. The court rejected Ms Thompson’s argument that errors in the costs assessment constituted irregularities justifying set-aside.
The court clarified that where costs certificates have been filed pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW), they cannot be challenged via r 36.15 on their merits. The costs assessor’s determination remains final unless challenged through the statutory review process (Review Panel and appeal to District or Supreme Court). Ms Thompson had pursued a review but failed on a procedural technicality—her own failure to correct the entity name error—rather than on any defect in the judgment’s entry.
Even if an irregularity existed, the court would have exercised its discretion against Ms Thompson. The costs assessor had carefully examined the scope-of-retainer dispute, considered Ms Thompson’s objections (resulting in substantial reductions to counsel’s fees), and given her full opportunity to participate. Ms Thompson’s contention that she did not receive the original application was immaterial; she had participated actively in the assessment by email. The unsigned costs agreement was valid by conduct, as Ms Thompson received it without objection and provided instructions in accordance with it.
Key Takeaways
- UCPR r 36.15 is confined to irregularities in the judgment entry process itself and does not permit re-examination of underlying decisions or determinations on their merits.
- Judgments based on costs certificates can be set aside only if the judgment entry was itself affected by irregularity, illegality, or bad faith—not if the assessor’s determination contains errors.
- A costs agreement may be formed by conduct, even without a signature, if the party receives proposed terms without objection and provides instructions consistent with them.
- Procedural remedies must be promptly pursued; failure to correct a party’s name in a review application is fatal, even if the error is acknowledged.
Why It Matters
This decision clarifies the strict limits of r 36.15 as it applies to costs-judgment challenges. It prevents parties from using this rule as a backdoor mechanism to challenge costs assessments on their substantive merits after they have already pursued (or could have pursued) the statutory review process. The holding reinforces that parties must follow the designated statutory pathways—costs assessment, Review Panel, and appeal—rather than trying to set aside judgments in the courts of general jurisdiction.
The case also confirms that procedural defects in the assessment process (such as alleged late notification) do not invalidate judgments if the party had adequate opportunity to participate, and that unsigned (but otherwise accepted) costs agreements are enforceable. For practitioners, the decision underscores that costs assessments proceed on a relatively streamlined track with limited grounds for later challenge, and that overlooking procedural requirements—such as correct party identification—can be dispositive.