The Deed is based upon the principles outlined in GLS v Goodman Group Pty Ltd [2015] VSC 627 and these principles have yet to be specifically applied in a New South Wales Court with jurisdiction to determine such an issue. However, in Amirbeaggi and 2 others -v- Business in Focus (Australia) Pty Limited [2008] NSWSC 421 Brereton J made comments about such agreements, quoting with approval from the judgment of Hodgson JA in Koutsourais v Metledge & Associates [2004] NSWCA 313:

36. In Koutsourais v Metledge & Associates… 

[9] So the question is, did this accord and satisfaction mean that proceedings to enforce it were not proceedings for the recovery of costs. In my opinion, this accord and satisfaction was insufficient to have that effect, for these reasons. First, the amount to be paid was still the precise amount claimed for costs. Second, the entity identified as liable for the whole was one of two entities which were together previously liable for the whole of the costs, albeit in undetermined shares. In my view, in substance it was still the recovery of costs that was being sought in the proceedings.

[10] In my opinion, this case is distinguishable from Connolly Suthers v Frost [1995] 2 Qd R 117. In that case, it was conceded that the Queensland equivalent of s 192 had no application. This is understandable, where the contract sued upon was twice removed from the contract pursuant to which the solicitor became entitled to costs; and the contract actually sued on was a compromise of litigation that had actually been commenced.

[11] In my opinion, factors which would tend to make proceedings ultimately based, at least in part, on a lawyer's entitlement to costs, other than proceedings for recovery of costs, would include: a compromise of previous legal proceedings; a compromise involving other matters as well as costs; a compromise accepting in respect of costs a substantially lesser sum; and legal advice to the client at the time of the compromise. Each and all of these factors would in my opinion tend towards changing the character of proceedings based on the compromise from being proceedings for the recovery of costs. None of these factors was present in this case.

41 In Koutsourais, Hodgson JA helpfully identified factors which pointed one way and the other. Significant considerations in favour of the conclusion that, despite the accord and satisfaction represented by the instalment agreement, the proceedings were still for the recovery of costs, included (1) that the amount to be paid was still the precise amount claimed for costs, and (2) that the entity identified as liable for the whole was one of two entities together previously liable for the whole of the costs, albeit in undetermined shares. Those two factors are present in the instant case: the amount claimed under the deed is the precise amount of the legal costs outstanding as at the date of the deed; and the parties against whom it is claimed are the parties who were previously liable for those costs.

42 None of the factors which his Honour identified as potentially rendering a proceeding ultimately based on a lawyer's entitlement to costs as one other than a proceeding for recovery of costs are present: there has been no compromise of previous legal proceedings in respect of those costs, let alone one involving other matters as well as costs; there has been no acceptance in respect of costs of a substantially lesser sum; and, although there is reference in the agreement to an opportunity to obtain legal advice, there is no evidence that legal advice was in fact obtained at the time of the deed.