Barterbanc Management Pty Ltd v Berry & Maloney (a firm)
[2000] VSC 23
•25 January 2000
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 6931 of 199
| BARTERBANC MANAGEMENT PTY. LTD. | Plaintiff |
| v. | |
| BERRY & MALONEY (A FIRM) | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 NOVEMBER 1999 | |
DATE OF JUDGMENT: | 25 JANUARY 2000 | |
CASE MAY BE CITED AS: | BARTERBANC MANAGEMENT PTY. LTD. v. BERRY & MALONEY | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 23 | |
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CATCHWORDS: Order for assessment of bills of costs by Taxing Master – Interim bills and final bill – Whether special circumstances required before order can be made – Legal Practice Act 1996, s.116.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. R. Cook | Tony O'Brien & Associates |
| For the Defendant | Mr. A. Bristow | Berry & Maloney |
HIS HONOUR:
This is an appeal from the order of a Master of the court made on 26 October 1999 whereby the Master dismissed the plaintiff's application that three bills of costs rendered to it by its former solicitors the Berry & Maloney be taxed pursuant to the provisions of s.116(1) of the Legal Practice Act 1996 (the Act).
Section 116 of the Act reads:
"116. Court may order assessment of costs
(1)The Supreme Court, on the application of a person referred to in section 115(1) or the legal practitioner or firm, may order -
(a) that the bill of costs be assessed by the Taxing Master;
(b)that the legal practitioner or firm not commence or continue any proceedings to recover the legal costs the subject of the bill until the assessment is completed;
(c)unless the applicant was the person to whom the bill was given, that the legal practitioner or firm give a copy of the bill to the applicant on payment of the costs of the copy.
(2)If the application is made by a party referred to in section 115(1), the assessment must take place without any money being paid into court.
(3)Except in special circumstances, the Court must not order that a bill of costs be assessed if the application under sub-section (1) was made -
(a)after a judgment has been given in favour of the legal practitioner or firm for the recovery of the legal costs the subject of the bill; or
(b)more than 12 months after the bill was given or payment was demanded (as the case may be) by the legal practitioner or firm.
(4)Except in special circumstances, the Court must not order the assessment of a bill of costs (other than an interim bill) that has already been assessed.
(5)If a bill of costs (other than an interim bill) has been paid, the Court may order the assessment of the bill only in special circumstances and in any event no later than 12 months after the payment."
In August 1998 the plaintiff retained the defendant to act for it in relation to certain litigation instituted in this court. The defendant continued to act for the plaintiff in relation to the litigation until towards the end of March 1999.
On 14 August 1998, 23 September 1998 and 7 October 1998, the plaintiff paid to the defendant sums of $5,000, $10,000 and $10,000 respectively on account of its costs of the litigation.
On 30 October 1998 the defendant rendered a bill of costs to the plaintiff in respect of a total sum of $49,883.60 (the first bill). Allowing for a small debit of $54.20 and an earlier bill of costs for $3,250, both of which can be disregarded for present purposes, the amount left outstanding was then $28,819.80.
The first bill is headed "Interim Bill of Costs". It is expressed to be in respect of the period from 31 August to 9 October 1998.
On 14 December 1998 and 27 January 1999 respectively, the plaintiff paid two further amounts of $10,000 to the defendant in respect of its legal costs.
On 12 March 1999 the defendant rendered a second bill of costs to the plaintiff in respect of a further amount of $8,640.80 (the second bill). Allowing for the earlier debits and credits, the balance left outstanding was then $16,810.60.
The second bill is simply headed "Bill of Costs". It is clear from the items claimed in the bill, however, that the bill covers the period from and including 12 October 1998 to 22 February 1999.
On 7 June 1999 the defendant rendered a third bill of costs to the plaintiff in respect of a further amount of $2,821.6 0 (the third bill). That had the practical effect of increasing the amount outstanding to $19,632.20.
The third bill is headed "Final Bill of Costs". It is expressed to be in respect of the period 12 March to 26 April 1999.
In April 1999 the plaintiff terminated the defendant's retainer and instructed its present solicitors to take over the conduct of the litigation in which it was involved.
On 20 September 1999 the plaintiff filed an originating motion and summons in the court whereby it sought orders pursuant to s.116(1) of the Act that the three bills of costs be assessed by the Taxing Master.
The plaintiff's summons came before a Master on 26 October 1999.
It is clear on the face of the order that the Master made that day that the Master dismissed the application because:
"There are no special circumstances which would justify the exercise of the discretion to allow a taxation order under s.116(5) of the Legal Practice Act 1996."
In making the order he did in respect of the application, doubtless the Master was influenced to some extent by the written outline of submissions handed to him by counsel for the parties, particularly those presented to him on behalf of the plaintiff. (See documents 11 and 12 on the court file.)
I say that for the reason that in the written submissions a member of counsel had prepared for the plaintiff counsel had submitted that in so far as bills one and two are concerned, it would be necessary for the plaintiff to demonstrate that there were special circumstances before the court would be justified in making an order pursuant to the provisions of s.116. That submission was apparently made on the footing that bills one and two had been paid. I should add that the counsel who prepared the submissions was not the counsel who appeared before the Master at the hearing of the application and before me.
No such concession was made in relation to the third bill.
The written submission filed on behalf of the defendant only dealt with the question as to whether or not special circumstances had been shown.
However, when the matter was argued before me counsel for the plaintiff did not make any such contention. So far as those bills are concerned, he submitted that no such leave was required because those bills were interim bills and therefore s.116(5) of the Act had no application to them; nor was the court precluded from making an order that they be assessed by virtue of the provisions of s.116(3) of the Act.
No judgment has been given in favour of the plaintiff in relation to them and the application to have them assessed was made within the twelve-month period specified in s.116(3)(b).
The entitlement of a legal practitioner or firm to give a person an interim bill of costs covering part only of the legal services the practitioner or firm was retained to provide, is given to the practitioner or firm by s.109 of the Act.
It is clear on their face that the first and second bills are interim bills, indeed the first bill specifically states that it is an interim bill.
Having regard to the content of the second bill, it is clear that it too falls into that category. Such a conclusion is reinforced by the fact that the third bill is headed "Final Bill of Costs".
In that situation s.116(5) of the Act has no application to the first and second bills.
No judgment has been entered in favour of the plaintiff in respect of any of the bills and the application that they be assessed was made within the period of twelve months specified in s.116(3)(b).
In the circumstances I can see no basis for refusing the plaintiff's application.
The plaintiff has raised a number of significant matters in relation to the costs charged by the defendant. It is not my function to prejudge the matter. I content myself by saying that the circumstances in this case are such that the plaintiff should be entitled to have its complaints in relation to the bills examined by the Taxing Master.
Paragraphs 1 and 2 of the orders made by the Master on 26 October 1999 are set aside.
I order that pursuant to the provisions of s.116(1) of the Legal Practice Act 1996 the bills of costs dated 30 October 1998, 12 March 1999 and 7 June 1999 rendered by the defendant to the plaintiff be assessed by the Taxing Master.
Having regard to the matters I have referred to concerning the hearing before the Master, I consider that it is appropriate to make no order as to the costs of the application to the Master or the costs of this appeal and I decline to do so.
(Discussion ensued.)
I make no order as to the costs of the application to the Master.
In respect of the costs of the appeal, I order that the defendant pay the plaintiff's costs of the appeal.
I grant to the defendant the appropriate certificate pursuant to the provisions of the Appeal Costs Act in respect of its costs of the appeal and the costs of the appeal it is required to pay the plaintiff.
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