District Court
New South Wales	

Case Name: 	Ugur v Dianna Kovacevic Lawyers Pty Ltd atf the Kovacevic Family Trust	
Medium Neutral Citation: 	[2024] NSWDC 679	
Hearing Date(s): 	21 August 2024	
Date of Orders:	21 August 2024	
Decision Date: 	21 August 2024	
Jurisdiction: 	Civil	
Before: 	Fitzsimmons SC DCJ	
Decision: 	(1) The Applicant is granted leave to proceed with the Amended Summons filed 17 July 2024 to the extent the Summons seeks to appeal from the determination of the Review Panel of the novation issue being ground 1 in the appeal tribunal’s determination dated 13 March 2023 further supplemented by the certificate dated 21 December 2023.
(2) On or before 20 September 2024, the parties are to file and serve evidence on the appeal. 
(3) On or before 4 October 2024, the Appellant is to file and serve a written outline of submissions. 
(4) On or before 25 October 2024, the Respondent is to file and serve a written outline of submissions. 
(5) On or before 8 November 2024, the Appellant is to serve any written submissions in reply to the Respondents.
(6) This matter is listed for Mention on 25 September 2024 at 9:30am.	
Catchwords: 	CIVIL – interlocutory decision – costs appeal – review panel determination – application for leave to appeal 
 
CIVIL – self represented applicant – grounds of appeal – grounds of appeal not agitated before costs review panel	
Legislation Cited: 	Legal Profession Uniform Law Application Act 2014, s 89
Uniform Civil Procedure Rules 2005 (NSW), r 50.3	
Cases Cited: 	Coulton v Holcombe (1986) 162 CLR 1
Gazecki v McCabes Lawyers Pty Ltd (2020) NSWLR 259; [2020] NSWCA 98
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jingalong Pty Limited v Todd [2014] NSWCA 330
Metwally v University of Wollongong (1984) 158 CLR 447
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1
Water Board v Moustakas (1988) 180 CLR 491	
Category: 	Procedural rulings	
Parties: 	Appellant: Hakan Ugur
Respondent: Dianna Kovacevic Lawyers Pty Ltd atf the Kovacevic Family Trust (ABN 25598708554)	
Representation: 	Self-represented: Mr H Ugur (Appellant)

Counsel:
Respondent: Mr A Rogers

Solicitors:
Respondent: Kovacevic Lawyers	
File Number(s): 	2024/135028	
Publication Restriction: 	None	
EX tEMPORE Judgment
1	By amended summons filed 17 July 2024, the applicant appeals the determination of a Costs Review Panel dated 21 December 2023. The applicant seeks leave to appeal in circumstances where the original summons was filed on 11 April 2024.
2	Rule 50.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that the summons must be filed within 28 days after decision, that is, filed by 19 January 2024.
3	The appeal from a Review Panel determination is by way of rehearing where the applicant demonstrates some legal, factual or discretionary error: s 89 Legal Profession Uniform Law Application Act 2014 (LPULAA): Gazecki v McCabes Lawyers Pty Ltd (2020) NSWLR 259; [2020] NSWCA 98.
4	Fresh evidence or evidence in addition to or in substitution of the evidence before the Review Panel or Costs Assessor may, with the leave of the Court, be given on the appeal: s 89(4) of the LPULAA.
5	On the application for leave, I read the affidavit of the applicant dated 16 July 2024. Other documents were separately tendered on the application for leave.
Procedural history
6	Sometime in 2017 the applicant retained Dribbus Kovacevic Lawyers to act for him in his family law proceedings. Dianna Kovacevic was a principal of that firm. 
7	In 2018 Ms Kovacevic split from her former firm and commenced operating a practice on her own as Kovacevic Lawyers. When moving, Ms Kovacevic retained the applicant as a client.
8	On 21 December 2020 final orders were made in the Family Court of Australia. At the conclusion of the proceedings there was a dispute regarding the fees as between the applicant and Ms Kovacevic.
9	As was the applicant’s right, on 1 April 2021, the applicant filed an application for assessment of the legal costs incurred arising from the family law proceedings. On 30 April 2021 an amended application for assessment was filed. 
10	It is appropriate to note that the applicant was legally represented throughout the application process, although it is apparent from the costs assessor’s decision that that retainer was terminated shortly before the costs assessment was completed.
11	On 21 October 2021 the costs assessor, Robert Fox, made what he described as “preliminary observations” in which he ruled that he could not determine the costs issue relating to costs incurred prior to Ms Kovacevic separating from Dribbus Kovacevic (costs proceedings 2021/90998). That preliminary determination arose from the fact Ms Kovacevic was claiming the costs incurred during the period she was with Dribbus Kovacevic. It was contended by Ms Kovacevic that a relevant novation permitted her to be able to charge for costs incurred whilst with Dribbus Kovacevic.
12	According to the preliminary observations of the assessor dated 21 October 2021, and indeed his final determination dated 13 August 2022, he ruled against Ms Kovacevic, finding that the novation did not entitle Ms Kovacevic to recover costs for the relevant period.
13	On 13 August 2022 Assessor Robert Fox made a final determination in the costs proceedings and a certificate of assessment in the sum of $238,831.94 was issued in favour of Kovacevic Lawyers.
14	On 21 September 2022, within the relevant time required, Ms Kovacevic made an application for review of the assessor’s determination in the name of Kovacevic Lawyers Pty Ltd. 
15	The application for review identified nine grounds which are articulated in the Review Panel’s determination. That determination was issued by the Review Panel initially on 13 March 2023. It is apparent that whilst the applicant was by that stage unrepresented, a solicitor by the name Charlotte Morson assisted the applicant in effect on a pro bono basis. Ms Morson noted some errors in the Review Panel determination which was brought to the panel’s attention on 4 May 2023.
16	As a result, the Review Panel issued an amended certificate of determination of review dated 21 December 2023, being the material date for the purposes of filing this appeal.
17	Whilst Ms Kovacevic filed an application for review of the original assessor’s decision, no review application was filed by the applicant. However, the applicant sent a letter to the Review Panel dated 22 October 2022, exhibit B on the application. That letter traversed a number of issues which were brought to the attention of the Review Panel. While self‑evidently the letter did not constitute any form of application for review of the original assessor’s decision, the letter did identify issues which the applicant contended arose from the costs assessment generally.
18	That document has some provenance on the application for leave given the applicant relies heavily upon it as a basis for contending that the Review Panel fell into error in its determination. 
19	The Review Panel upheld several of the grounds raised by the application for review, although several other grounds were not upheld by the Review Panel. The most substantial ground, being the effect of any novation entitling Ms Kovacevic to recover costs prior to 4 September 2018, was upheld. The Review Panel thereafter proceeded to determine the costs for that period which was originally disallowed by Assessor Fox.
20	Several other grounds were upheld, although those grounds were of lesser significance, relating to allowances for counsel’s fees, allowances for photocopying and scanning charges and the alleged global reduction of the fees.
21	Following the Review Panel determination, Kovacevic Lawyers sought to enforce the determination by registration of a judgment in this Court. On 11 April 2024 the applicant filed a notice of motion seeking various orders, including orders relating to the Review Panel determination. On the same day, the appellant filed a summons commencing an appeal from the Review Panel determination.
22	The notice of motion and summons were listed for hearing in the Wollongong sittings commencing 17 June 2024. On the applicant’s application the hearing was adjourned, and orders were made requiring the applicant to file an amended summons as required by UCPR rule 50.4 together with any affidavit in support of an application for leave. At that time, the appellant was provided by the Court with the relevant provisions of the UCPR to assist in the drafting of the amended summons.
23	An amended summons
24	In accordance with the orders, the applicant filed the amended summons dated 17 July 2024. The summons seeks a preliminary order of leave to appeal from the whole of the decision below and a further order seeking leave “in the timing of this appeal”. In effect, consistent with the information provided to the applicant when the hearing was adjourned, the applicant was seeking leave to proceed out of time.
25	Various other orders were sought in the summons, including the setting aside of a bankruptcy notice issued by the Federal Court, and other consequential orders relating to the preservation of his home in Mount Warrigal from any such proceedings.
26	The appeal grounds run for some nine pages comprising of 55 paragraphs. It is difficult to discern from the contents of the summons precisely the grounds of appeal, although no particular criticism is made of the applicant in this respect given he is unrepresented. It is fair to say that the applicant did his best to articulate the grounds of appeal, although I am sympathetic to the respondent’s position in terms of precisely understanding the grounds of appeal.
27	The refined grounds of appeal
28	However, over a period of some two days of hearing this application for leave, including lengthy interaction with the applicant, the grounds of appeal are essentially the following:
(1)	The Review Panel failed to determine the applicant’s contention that in March/April 2020 an agreement was reached between the applicant and the respondent that the applicant’s costs in the family law proceedings would be capped at the proceeds of the property settlement, excluding the applicant’s home in Mount Warrigal.
(2)	The Review Panel erroneously determined the novation issue favourably to the respondent such that he became liable for the costs incurred whilst Ms Kovacevic was the principal of Dribbus Kovacevic during the period 2017/2018.
(3)	The Review Panel failed to determine the applicant’s contention that the respondent charged for legal work which it was expressly agreed would not be charged by reason of representations made by Ms Kovacevic.
(4)	The Review Panel failed to have regard to the applicant’s complaint that Ms Kovacevic failed to properly itemise work contained in a substantial invoice issued on 10 March 2020.
(5)	The Review Panel failed to determine the applicant’s complaint that the respondent did not make disclosures as to legal fees to be charged as required by the Legal Profession Uniform Law (NSW).
29	Determination of the application for leave to appeal
30	In Jingalong Pty Limited v Todd [2014] NSWCA 330 McColl JA considered the relevant principles applicable in an application to extend time for the filing of a notice of appeal. Her Honour said the following:
“39. The discretion to extend time for the filing of a notice of appeal is given for the sole purpose enabling the Court to do justice between the parties. Accordingly, the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice to Jingalong. In order to determine whether the rules will have that effect it is necessary to regard to the history of the proceedings, the conduct of the parties, the nature of litigation and the consequences for the parties if the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; 1990 64 ALJR 458 at 459 per McHugh J. 
40. The four factors of general relevance to an application to extend time within which to appeal are the length and reason for the delay. Whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) [2007] NSWCA 369; [2007] 71 NSWLR 61 at [55] per Basten JA (Hodgson and Ipp JA agreeing). 
41. The power to extend time must be exercised in recognition of the fact that the respondents have a vested right to retain the judgment proposed to be the subject of appeal; Jackamarra v Krakouer [1998] HCA 27; [1998] 195 CLR 516 (at 519 - 510): Tomko [55]”.
31	Reference has already been made to the history of the proceedings. I now turn to the question of conduct of the parties and the consequences for the grant or refusal of the application. Consistent with the observations of McColl JA in Jingalong, four factors are relevant, those being:
(1)	The length of delay;
(2)	The reason for the delay;
(3)	Where there is a fairly arguable case;
(4)	Prejudice.
32	It is previously noted the summons for appeal should have been filed by 18 January 2024, but instead was filed on 11 April 2024. The length of the delay is relatively short, particularly given the history of the proceedings. 
33	The applicant, in his affidavit sworn 16 July 2024, refers to personal circumstances that were persisting at the time and the difficulties he experienced in effectively organising his affairs. It is unnecessary to traverse for the purposes of this judgment those personal circumstances and medical conditions otherwise referred to in the report of Dr Raza.
34	Suffice to say I am satisfied that the applicant has provided a reasonable explanation for the delay and, as previously observed, the length of the delay is relatively short.
35	Counsel for the respondent, Mr Rogers, fairly concedes that the respondent is unable to identify any particular prejudice arising from the delay in filing the application for leave. The remaining issue is whether the applicant has a fairly arguable case. 
36	As previously observed, in determining whether leave should be granted, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences of the decision to grant or refuse leave. In determining whether to grant leave to extend the time the court notes that several grounds of appeal were not raised before the Review Panel and or the costs assessor at first instance. It is necessary to also consider the relevant principles relating to parties arguing on appeal matters not raised in the tribunals below.
37	In Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, Mason P (Gleeson CJ and Priestly JA agreeing), articulated the relevant principles applicable where a party seeks to argue on appeal matters that were not raised in the Court or tribunal below. His Honour, after referring to the decision of the High Court in Metwally v University of Wollongong (1984) 158 CLR 447, at 645 observed:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
38	His Honour went on to observe at 645:
“While the principle is a compelling one it needs recognition that University of Wollongong did not involve an appeal by way of a rehearing. Indeed, it did not involve an appeal at all: see Coulton v Holcombe (1986) 162 CLR 1 at 17.
Since this is an appeal by way of rehearing the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe at 7 to 9. A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial.”
39	His Honour further observed at 645, “…it remains a question of whether the appellate court “may find it expedient and in the interests of justice to entertain the point’”, citing Water Board v Moustakas (1988) 180 CLR 491 at 497. His further observed that the rule was “not an absolute one.”
40	However, his Honour cited with approval the decision of Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24 per Isaacs J to the following effect:
“…it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial.”
41	His Honour further cited with approval the judgment in Coulton v Holcombe (1986) 162 CLR 1 at 7 to the following effect:
““It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”
42	In this context it is again significant to note that throughout the course of the original assessment before Assessor Fox, and until shortly prior to the determination, the applicant was legally represented. It is evident from the evidence on this application that the legal representative competently presented the case on behalf of the applicant. The solicitor identified the relevant issues for the assessor at first instance that he was required to determine in the assessment of costs.
43	The applicant contends in this Court that he attempted to amend the original application for assessment. The applicant in support of his contention relied upon an email sent to him dated 1 April 2021 being annexure G to the affidavit of 16 July 2024 in which the solicitor referred to being unable to amend the costs assessment.
44	The applicant’s contention as to amending the costs assessment seems to be limited to issues which were traversed as a part of the email of 1 April 2021. In any event it is apparent that indeed an amended application was in fact filed on 6 May 2021, after the email of 1 April 2021.
45	It is also significant to note that, as previously observed, no application was made by the applicant to review the determination of Assessor Fox. Whilst the applicant contended in submissions, not otherwise supported by evidence, that consideration was being given by him to a review at a time he was self-represented, this is inconsistent with the applicant’s letter to the Review Panel dated 25 October 2022 in which he observed, “I respect and am grateful for the findings of the original cost assessor, Mr Robert Fox. I believe he has addressed and worked out most of what has happened.”
46	As I propose to grant limited leave by reference to the points of appeal identified above, it is appropriate I deal with each of those points of appeal in turn:
1. The Review Panel failed to determine the applicant’s contention that an agreement was reached to cap the costs and to exclude the matrimonial home. 
47	It is apparent from the evidence, including the original application for assessment of costs, the amended application, notices of objection and other correspondence forwarded to the assessor at first instance, as well as the assessor’s decision, that no such contention was made before Assessor Fox. It is significant that during this period the applicant was legally represented. Self-evidently, if such an issue had been raised for determination by the original assessor, it would have been necessary for the assessor have had evidence from the applicant, and for that matter from the respondent, with respect to any such alleged agreement. Not only did the applicant put on no evidence on that issue before the original assessor, the respondent was denied the opportunity of adducing further evidence on the issue.
48	The applicant however relies upon the letter to the Review Panel of 25 October 2022 contending that that letter raised the issue of an alleged contract with the Review Panel. I do not accept this submission. There is no doubt that the letter refers obliquely to an expectation as to what would be received on settlement and that the prospect of selling his home was not within his contemplation. The statements made by the applicant in the letter to the Review Panel of 25 October 2022 does not support the contention that there was, in March or April 2020, an agreement that costs would be capped on the proceeds of settlement and that the matrimonial home would not be encumbered for the payment of costs. At p 3 of the letter the applicant says as follows:
“Dianna estimated that I would receive in excess of $360,000 on settlement but unfortunately I didn’t. Selling my home was never mentioned until well after the final hearing when it was clear that I was not going to receive anywhere near her expected amount.”
49	It is readily apparent from that statement that, according to the applicant, any issue about the selling of the matrimonial home or otherwise was not the subject of any discussion; it was not mentioned. Despite this, the applicant contends that in fact whether his home would be encumbered for the purpose of payment of costs was the subject of an express agreement. There is nothing contained in the paragraph upon which the applicant relies which supports any express agreement.
50	The applicant further relies upon alleged correspondence passing between the applicant and the respondent in March and April 2020. The applicant alleges that the agreement was reached in March 2020. However, it is readily apparent from the email from the respondent to the applicant of 6 August 2020 that no such agreement was reached in circumstances where the respondent, through an employee, clearly said the following “I asked if you put a proposal to me as to the payment of my costs dated 10 March 2020 and any further costs moving forward.”
51	I do not accept that the costs notice dated 22 October 2020 reflects any agreement as alleged by the applicant. That document clearly refers to the source of funds for costs to be settlement monies and further refers to paying the balance of the legal fees from the applicant’s property settlement. There is nothing in that document which suggests the matrimonial home would be excluded or isolated from any liability to pay costs. 
52	To the extent that the applicant alleges that an agreement was reached that costs would be capped at the cash settlement sum, excluding the real estate, it is inconsistent with the assertion contained on p 4 of the letter to the Review Panel dated 25 October 2022 in which the applicant says the following:
“I believe this case should be capped at $80,000 - $100,000 (my original estimate) & $80,000 including counsel (Dianna said at the Call Over in May 2020), these are the only estimates I have been given apart from the Costs notice 22 October 2020.”
53	To the extent to which the applicant alleges any alleged cap in costs it is a cap nominated by reference to the sum at p 4 as quoted above. There is no allegation in that document of 25 October 2022 that costs would be capped at the cash settlement to the exclusion of the matrimonial home.
54	In determining whether leave should be granted it is necessary to consider the relevant principles as to whether the applicant should be permitted to effectively agitate a point on appeal which was not raised either at first instance, that is before the original assessor, when he was legally represented, or for that matter, before the Review Panel.
55	As previously noted, this was a matter which clearly would have been the subject of evidence before the original assessor, or if necessary, before the appeal panel.
56	The applicant should not now be permitted to proceed with such an issue as to an alleged contract capping costs and circumstances where it was not the subject of any issue before the original assessor or for that matter the Review Panel. In any event, for the reasons already traversed, I am of the opinion of the new evidence on which the applicant relies does not support the appellant’s contention that a contract was in existence, even applying the test for summary judgment in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. 
57	In the circumstances I do not grant leave for the applicant to proceed on the amended summons in respect to this particular point of appeal.
2. The effect of the novation. 
58	Whilst it is not easily identified in the amended summons, this is a discrete ground of appeal. I am satisfied that in fact this is a ground which is, at least, referred to in the amended summons. Again, I make no criticism of the applicant given his unrepresented status. This was clearly the most significant issue determined by the Review Panel in overturning the decision of the original assessor and in the circumstances, I propose to grant leave to the appellant to proceed with the amended summons to the extent that the summons traverses as a ground of appeal the Review Panel’s determination as to the effect of any novation.
3. The Review Panel failed to determine any contention that the respondent charged for legal work which it expressly agreed would not be charged.
59	It is significant to note that no such contention was raised in the original costs assessment before Assessor Fox. Indeed, to the extent the documents providing insight, it is apparent that no such allegation was made before the assessor that the respondent made express representations that she would not charge for particular work.
60	The applicant on this issue contended before the Review Panel, and indeed on this application, that Ms Kovacevic made an express representation that she would not charge for a second solicitor at the final hearing attendance. This in fact is inconsistent with the objection taken in the original assessment being a “global objection made to charges for two practitioners attending court, unnecessary excessive and unreasonable charges leading to unusual and excessive inflation of costs”. That was the objection taken at the original assessment rather than any contention that Ms Kovacevic made express representations that she would not charge for the second solicitor.
61	Self-evidently, any such alleged representations would again need to have been the subject of evidence before the original assessor. That is evidence from both the applicant and for that matter, Ms Kovacevic. It was not a matter which was the subject of any initial objection by the applicant before the assessor despite being legally represented at the time. Given the history of the proceedings, the need for further evidence, and in the absence of any further explanation, the applicant should not be permitted to now agitate that issue that at this appeal.
62	Accordingly, I do not propose to grant leave on that point of the appeal.
4. The Review Panel failed to have regard to the applicant’s complaint that Ms Kovacevic failed to itemise relevant work in the substantial fee.
63	This was an issue which was the subject of assessment and determination by the original assessor. It was not the subject of any application for review by the review tribunal. It was not an issue raised by the applicant before the review tribunal and in those circumstances the applicant should not be permitted to now contend on this appeal that there was any alleged error by the Review Panel. I do not propose to grant leave in respect to that point of the appeal.
5. The Review Panel failed to determine the applicant’s complaint that there was inadequate or no proper disclosure of the legal fees to be charged. 
64	This was also a matter which was traversed before the original assessor and the subject of his determination in his assessment of legal costs. It was not a matter which was identified for the Review Panel or was raised as any alleged error or issue for their consideration. In the circumstances the appellant should not be permitted to now raise on an appeal from the Review Panel that issue or alleged point of appeal.
Orders
65	In all the circumstances I make the following orders:
(1)	The Applicant is granted leave to proceed with the Amended Summons filed 17 July 2024 to the extent the Summons seeks to appeal from the determination of the Review Panel of the novation issue being ground 1 in the appeal tribunal’s determination dated 13 March 2023 further supplemented by the certificate dated 21 December 2023
(2)	On or before 20 September 2024, the parties are to file and serve evidence on the appeal. 
(3)	On or before 4 October 2024, the Appellant is to file and serve a written outline of submissions. 
(4)	On or before 25 October 2024, the Respondent is to file and serve a written outline of submissions. 
(5)	On or before 8 November 2024, the Appellant is to serve any written submissions in reply to the Respondents.
(6)	This matter is listed for Mention on 25 September 2024 at 9:30am.
**********