ASA Nominees Pty Ltd v Adamopoulos - [2019] VSC 296

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S ECI 2018 00731

ASA NOMINEES PTY LTD (ACN 084 232 306) (CONTROLLERS APPOINTED) & ANOR	Applicants
v
IRENE ADAMOPOULOS	Respondent

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JUDICIAL REGISTRAR:	Gourlay JR
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2019
DATE OF JUDGMENT:	10 May 2019
CASE MAY BE CITED AS:	ASA Nominees Pty Ltd v Adamopoulos
MEDIUM NEUTRAL CITATION:	[2019] VSC 296

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COSTS COURT – Review of taxation of costs by a costs registrar – Application of Rule 63.56.2(2) to review where Summons for Taxation issued before amendment of Order 63 commencing on 1 October 2019 – Costs of obtaining advice on advisability of appeal – Application of Rule 63.85.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms S Cherry	HWL Ebsworth Lawyers
For the Respondent	Mr S Sizenko	Geelong Legal

JUDICIAL REGISTRAR:

The applicants[1] issued a Summons for Taxation of a bill of costs drawn pursuant to two orders of Associate Justice Derham made on 20 December 2016 in proceedings No. S CI 2015 05653 and S CI 2016 0366. The hearing of the taxation of the bill of costs, together with an addendum bill, concluded on 5 December 2018 and the respondent was ordered to pay the applicants the sum of $61,709,18. The respondent was represented at the taxation by a solicitor who specialises in costs law and the applicants were represented by an unqualified costs consultant.
[1] In these reasons I refer to the parties as the applicants and the respondent, despite the respondent being the applicant seeking to review of the taxation orders. .

The review of the taxation order was brought pursuant to rule 63.91 of the Supreme Court (General Civil Procedure) Rules 2015. However, rule 63.109(2) of Part 9 of Order 63 provides that if the Summons for Taxation was filed before 1 October 2018 then rule 63.56.2(2) applies for the conduct of the review[2]. The respondent seeks to review determinations of the costs registrar in allowing items or amounts in the bill in respect of:
[2] 63.107 states that Part 9 applies to determinations made in proceedings commenced in the Costs Court after the commencement of this Part, that is after 1 October 2018.

(a) Items 1-4 of the bill were allowed in full. The items 1-3 claim costs for receiving, filing and perusing the order made on 8 October 2015 by VCAT and item 4 claims the costs of perusing reasons delivered on 17 September 2015. Both parties appealed the 8 October 2015 order.

(b) Item 5 was allowed in full and is a claim for preparation by the applicants’ solicitor of a letter advising on a possible appeal from the orders made on 8 October 2015, on the merits of such an appeal succeeding, and seeking instructions to appeal.

(c) Item 472 claims scale costs of drawing and engrossing the first bill of costs in the sum of $7,100.00 and allowed at $6,600.00[3].

(d) Item 69 claims scale costs of drawing and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 296
Decision Date: 10 May 2019

CaseChat Overview and Summary

The parties involved in this case were ASA Nominees Pty Ltd and Adamopoulos. The dispute centred around the taxation of costs incurred during legal proceedings. The court in question was the Costs Court, which has the authority to review the decisions made by a costs registrar regarding the assessment and distribution of legal costs. The case hinged on the application of specific rules within the Uniform Civil Procedure Rules 2005 (NSW), particularly Rule 63.56.2(2) and Rule 63.85.

The primary legal issue the court had to address was whether the Summons for Taxation, issued before the amendment of Order 63 on 1 October 2019, could be reviewed under Rule 63.56.2(2). Additionally, the court needed to determine whether costs incurred for obtaining legal advice on the advisability of appealing a decision could be included in the taxation of costs. This issue required the court to interpret the relevant rules and consider the circumstances under which such costs might be considered allowable.

In its reasoning, the court found that the Summons for Taxation could indeed be reviewed under Rule 63.56.2(2), even though it was issued before the amendment to Order 63. The court held that the application of the rule was not retrospective and thus did not affect the validity of the Summons. Furthermore, the court ruled that costs associated with obtaining advice on the advisability of appeal were not necessarily recoverable under Rule 63.85, unless they were directly related to the proceedings in which the costs were being taxed. The court emphasised that the costs must be directly connected to the proceedings and not merely preparatory or incidental.

The final orders of the court were that the Summons for Taxation was reviewable under Rule 63.56.2(2) and that the costs incurred for obtaining advice on the advisability of appeal were not allowable unless they were directly related to the specific proceedings. This decision provided clarity on the application of the relevant rules and the circumstances under which certain costs could be considered in the taxation of legal expenses.

Orders