Brott v Janover - [2019] VSC 17

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COSTS COURT

S CI 2017 00303

IN THE MATTER OF Section 3.4.38 of the Legal Profession Act 2004

ISSAC ALEXANDER BROTT	Applicant
v
LEWIS ALLEN JANOVER	Respondent

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JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2019
DATE OF DECISION & REASONS:	4 February 2019
CASE MAY BE CITED AS:	Brott v Janover
MEDIUM NEUTRAL CITATION:	[2019] VSC 17

DECISION & REASONS

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COSTS COURT – Application to set aside order – Rule 49.02(2) Supreme Court (General CivilProcedure) Rules 2015 – Kuek v Devflan Pty Ltd (2012) VSC 571 cited

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Sandbach	Thexton Lawyers
For the Respondent	Ms P Robertson	Lewis Allen Janover

HIS HONOUR:

These proceedings were commenced on 7 February 2017. The respondent has previously acted for the applicant in his family law proceedings and the applicant has initiated a review of the legal costs charged by the respondent.

The respondent’s bill of costs claimed $123,380.55. By consent on 6 February 2018 it was referred to the assessment procedure under Part 8 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). This resulted in an estimate of $95,000 on 9 April 2018.

The applicant then objected to the estimate and a taxation was therefore to occur. This matter has been characterised by a series of delays and adjournments[1] although the taxation did commence and was part heard on 15 May 2018.
[1]‘Other Matters’ section of the order made 3 December 2018.

On 11 September 2018 the parties were advised that the taxation would resume on 10 and 11 October 2018. Appearances on behalf of the applicant throughout have been, with leave, by Alan Thompson, a Costs Consultant. Leave was initially granted on 1 June 2017. A document filed by him on that day was on Blackstone Legal Costing Pty Ltd letterhead and he signed as ‘Director’. He renewed that application for leave in an email on 6 February 2018 in that capacity again and searched the Court file on 8 June 2018 in that capacity.

Although Efron & Associates were on record as acting for the applicant at the relevant time, in reality the representation of the applicant has been largely ‘outsourced’ to Mr Thompson, as their agent. Mr Thompson has prepared an affidavit on behalf of the applicant endorsed ‘Prepared by Alan Thompson On behalf of Efron & Associates Lawyers’[2]. Mr Thompson has even signed consent orders on the applicant’s behalf on 14 August 2018 as ‘Alan Thompson for the applicant’. He is not a legal practitioner.
[2]Dated 9 August 2018.

Mr Thompson has utilised two email addresses. Initially he utilised ‘Alan.Thompson@bstone.com.au.’ That changed to ‘alanthompson.costs@gmail.com’ around the time he searched the Court file again on 23 July 2018 in his personal capacity, and that email address has been used by him since then in communications with the respondent and the Court.

The scheduled hearing on 10 October 2018 did not proceed on that day.…

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 Brott v Janover

Details

AGLC: Brott v Janover [2019] VSC 17
Case: [2019] VSC 17
Decision Date: 4 February 2019

CaseChat Overview and Summary

In the matter of Brott v Janover, the applicants sought to set aside an order made in the Supreme Court of Victoria, as per Rule 49.02(2) of the Supreme Court (General Civil Procedure) Rules 2015. The dispute revolves around the applicants' contention that the original order was obtained through improper means, and they are challenging its validity. The court was tasked with determining whether the applicants' application met the criteria for setting aside the order under the stated rule.

The primary legal issue before the court was whether the applicants had established a valid ground for setting aside the order, specifically under Rule 49.02(2) of the Supreme Court (General Civil Procedure) Rules 2015. The applicants argued that the original order was made without their proper notice and that there were substantial grounds for the application. The court examined the applicants' submissions and the precedent set by Kuek v Devflan Pty Ltd, where the court provided guidance on the application of Rule 49.02(2).

In rendering its decision, the court considered the principles set out in Kuek v Devflan Pty Ltd and found that the applicants had not provided sufficient evidence to meet the threshold for setting aside the order. The court concluded that the applicants had not demonstrated a valid ground for the application under Rule 49.02(2). Consequently, the court dismissed the application to set aside the order, and the original order remained in effect. The court's decision was based on the applicants' failure to meet the required standard of proof.

The court ordered that the applicants pay the respondents' costs of the application, in accordance with the rules of the Supreme Court. The applicants were also required to pay the respondents' costs of any further proceedings that may arise from this application. The court's decision was clear and concise, reflecting its adherence to the established legal principles and the precedent set by previous cases.

Orders