Bosnali v Bartter Enterprises Pty Ltd

[2010] VSC 360

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT GEELONG

COMMON LAW DIVISION

No. 51 of 2009

SENOL BOSNALI	Plaintiff
v
BARTTER ENTERPRISES PTY LTD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Geelong
DATE OF HEARING:	18 August 2010
DATE OF RULING:	18 August 2010
CASE MAY BE CITED AS:	Bosnali v Bartter Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 360

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COMMON LAW – Application for order under s 134AB(30) of the Accident Compensation Act1985 – limit imposed – undertaking required - Acir v Frosster Pty Ltd [2009] VSC 539 followed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC with Mr G Coldwell	Maurice Blackburn
For the Defendant	Mr J Tebbutt with Miss K Galpin	Wisewould Mahony

HIS HONOUR:

1. Application is made in this matter for an order pursuant to s 134AB(30) of the Accident Compensation Act 1985 that the plaintiff pay to his solicitors reasonable solicitor/client costs to be taxed in default of agreement. 

1. The order is sought in circumstances where the plaintiff's claim was settled at the court door on terms which are not before the Court, and I yesterday made formal orders disposing of the claim by consent between the parties, dismissing the claim save for an order that the defendant pay the plaintiff's costs.

1. The underlying foundation of the solicitors’ right to costs as against Mr Bosnali is a retainer by way of a written costs agreement which entitles them to recover from him the costs incurred in the proceeding over and above party/party costs recovered from the defendant. 

1. The effect of s 135BA(2) of the Accident Compensation Act is that only 80 per cent of scale costs will be able to be recovered on a party/party basis, and of course party/party costs would not, in any event, cover the full solicitor/client costs.

1. The relevant principles governing an application of the type before me were analysed in Acir v Frosster Pty Ltd,[1] a decision of J Forrest J.  It is unnecessary to repeat the substance of his Honour's analysis.  I respectfully adopt it.

   [1][2009] VSC 539.

1. In the present case, after Mr Mighell stated the basis of the application to me, Mr Bosnali indicated that he understood the nature of the application and consents to it. 

1. In my view a further critical consideration is the fact that Mr Bosnali has had explained to him his right to have the Court subsequently fix the amount of costs either by way of taxation or by order pursuant to s 134AB(31) and that he has a general understanding of the nature of his rights of review with respect to the costs ultimately sought by his solicitors.

1. I propose to make the order sought, but first as was done in Acir, to express it as subject to a limit, namely ‘Not exceeding the sum of $50,000’ being the sum of which Mr Bosnali has been advised as a potential outside limit.  I shall also condition the order upon an undertaking that any claim for payment of costs by Mr Bosnali be accompanied by a written letter of advice informing him of his rights to have such costs assessed by this Court, either by way of taxation of the costs or by way of an application pursuant to s 134AB(31) and further informing him of his right to seek advice in respect of such costs from the Law Institute of Victoria.

1. Mr Mighell having given the undertaking that I have stipulated on behalf of his instructing solicitors, I order that the plaintiff pay to his solicitors pursuant to s 134AB(30) of the Accident Compensation Act 1985 reasonable solicitor/client costs to be taxed in default of agreement but in any event, not exceeding $50,000.