Constructional choice

Todorovska v Brydens Lawyers [2022] NSWCA 47

From a $100K damages award, lawyers deducted $68K for their costs under a special agreement overriding the statutory cap of $10K.  The plaintiff complained that this eventuality had not been disclosed to her, as required5.  The appeal court agreed and duly reduced the costs to the lawyers. 

Basten JA said (at [15]), where a constructional choice is to be made6, the ‘reading which promotes purpose must be preferred to one that does not, or does so to a lesser extent’7.  The identified purpose of the provisions here confirmed the obligation to properly disclose possible financial consequences of the costs agreement.  Ticking a box was not enough.

This principle is from Episode 84 of interpretation NOW!


5 s 338 of the Legal Profession Act 2004 (NSW).

6 SZTAL [2017] HCA 34 (at [39]), Episodes 34, 41 & 56, (2018) 92 ALJ 81.

7 s 33 of the Interpretation Act 1987 (NSW).