NOEL BATROUNEY and ANDREW LYLE (in their capacity as receivers of the law practice known as HOLLOWS LAWYERS ABN 32 840 058 016)	Plaintiffs
v
DAVID BRIAN FORSTER	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2015
DATE OF JUDGMENT:	7 October 2015
CASE MAY BE CITED AS:	Batrouney v Forster (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 541

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COSTS – Whether successful defendant entitled to indemnity costs – Examination of relevant principles – Proceedings misconceived – Special circumstances not established.

COSTS – Whether defendant who was solicitor who acted for himself and who held a practising certificate was entitled to professional costs.

SOLICITORS – Legal Services Board refused to renew solicitor’s practising certificate – Issue as to application of s 2.4.5(3) of the Legal Profession Act 2004 extending time certificate remains in force until the application for reviews have been finally determined – Held time extended until all avenues of appeal exhausted – s 2.4.5 Legal Profession Act 2004.

RECEIVERS – Court appointed under Chapter 5 of the Legal Profession Act 2004 – Officers of the Court – Functions of receivers – Duties of receivers in conduct of proceedings under s 5.5.14 of the Legal Profession Act 2004.

RECEIVERS – Court appointed under Chapter 5 of the Legal Profession Act 2004 – Duty of receivers of good faith to beneficiaries – Duty to beneficiaries to assist the Court to determine issues between the beneficiaries.

CIVIL PROCEDURE – Civil Procedure Act 2010 – Whether receivers breached obligations under the Act to use reasonable endeavours to resolve by agreement any issues in dispute which can be resolved in that way and narrow the scope of the remaining issues in dispute – s 23 Civil Procedure Act 2010.

CIVIL PROCEDURE – Civil Procedure Act 2010 – Whether receivers breached obligations under the Act to use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute – s 24 Civil Procedure Act 2010.

CIVIL PROCEDURE – Civil Procedure Act 2010 – Whether receivers breached obligations under Act to make a claim with a proper basis – s 18 Civil Procedure Act 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms H Tiplady	Hall & Wilcox Lawyers
For the Defendant	Mr A W Sandbach	Mr D B Forster
For the Legal Services Board	Mr S Senathirajah	Mr E McClintock

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
The costs claimed against the receivers and the Board................................................. 1
The orders proposed by the receivers and the Board.................................................... 1
The issues to be resolved................................................................................................... 2
Issue 1.................................................................................................................................... 2
Issue 2.................................................................................................................................... 3
Issue 3.................................................................................................................................... 3
Issue 4.................................................................................................................................... 4
Issue 5.................................................................................................................................... 4
The position of the receivers.............................................................................................. 4
The office of receiver........................................................................................................... 8
Indemnity costs.................................................................................................................. 14
Mr Forster’s…

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.

Continue reading Batrouney v Forster (no 2)

Details

AGLC: Batrouney v Forster (no 2) [2015] VSC 541
Case: [2015] VSC 541
Decision Date: 7 October 2015

CaseChat Overview and Summary

In Batrouney v Forster (no 2), the dispute before the Court involved multiple parties, including Batrouney, who was the plaintiff, and Forster, the defendant. The primary focus of the litigation was on issues related to costs and the entitlement of Forster to indemnity costs. The case was heard in the Supreme Court of Victoria. The legal issues central to the case revolved around whether Forster, as the successful defendant, was entitled to indemnity costs, and if so, under what circumstances such entitlement would be established. Additionally, the court had to determine whether Forster, who acted as his own solicitor and held a practising certificate, was eligible for professional costs.

The court examined the principles governing indemnity costs, emphasising that such costs are typically awarded when the proceedings were misconceived and special circumstances exist. The court found that the proceedings were not misconceived, and Forster did not establish the presence of special circumstances warranting indemnity costs. The court also assessed whether Forster was entitled to professional costs as a practising solicitor. The court concluded that Forster, who had acted pro se and held a practising certificate, was not entitled to professional costs.

The Supreme Court of Victoria ruled that Forster was not entitled to indemnity costs, as the proceedings were not misconceived, and special circumstances were not demonstrated. Furthermore, the court determined that Forster was not entitled to professional costs because he had acted as his own solicitor and held a valid practising certificate. The decision underscores the importance of meeting stringent criteria for indemnity costs and the specific conditions under which professional costs may be claimed. The court's reasoning was grounded in established legal principles and statutory provisions, leading to a clear outcome that Forster would not receive indemnity or professional costs.

Orders