Davey v Costanzo Lawyers Ltd (ACN 158 282 163) (Costs)

[2021] VSC 474

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02947

SUE SEPEDAH DAVEY	Plaintiff
v
COSTANZO LAWYERS LTD (ACN 158 282 163) atf COSTANZO LAWYERS TRUST trading as COSTANZO LAWYERS	First Defendant
MAGISTRATES’ COURT OF VICTORIA AT HEIDELBERG	Second Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 August 2021
CASE MAY BE CITED AS:	Davey v Costanzo Lawyers Ltd (ACN 158 282 163) (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 474

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COSTS – Legal Profession Uniform Law s 198(4) – Where appeal successful but litigation conduct of the plaintiff caused substantial wasted cost – Appeals Costs Act 1998 (Vic) s 4 – Indemnity certificate granted – Consent orders.

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HER HONOUR:

1. Judgement was delivered in this proceeding on 30 July 2021.[1]  The Court determined that the default judgement was entered irregularly and the judgement cannot remain on the record. The application for review was allowed on that ground.

   [1]Davey v Costanzo Lawyers Ltd (ACN 158 282 163) [2021] VSC 449.

1. The parties were invited to make submissions as to the form of orders and in relation to costs.

Consent orders proposed for disposition of the proceeding

1. In the ordinary course, the Court would remit the proceeding to the Magistrates’ Court for determination in accordance with law. However, the parties have provided the Court with proposed consent orders which will allow for the disposition of the underlying dispute without remitting the proceeding back to the Magistrates’ Court.

1. The proposed orders provide a mechanism for the disposition of the underlying dispute between them by referring the dispute to the Costs Court. This is an appropriate course. A referral to the Costs Court at this stage can only be made if the Supreme Court, as the designated Tribunal pursuant to s 198(4) of the Legal Profession Uniform Law, by reason of s 10(3), item 2 of the Legal Profession Uniform Law Application Act 2014, decides it is fair and just to do so.

1. By the proposed consent orders, this proceeding is deemed to be an application by the plaintiff pursuant to Division 7 of the Legal Profession Uniform Law for assessment of the first defendant’s legal costs and disbursements.

1. I am satisfied in the circumstances of this dispute having heard the substantive matter that it is appropriate that the dispute as to costs between the parties which formed the substantive proceeding be determined by the Costs Court. I find that pursuant to s 198(4) of the Legal Profession Uniform Law that is just and fair for the bills to be assessed and refer the bills to the Costs Court for the purposes of the assessment.

Costs of the proceeding

1. The only remaining issue was the cost of the proceeding before me. Short written submissions were provided by both parties.

1. The plaintiff, relying on the general rule that costs should follow the event, submitted that the first defendant should pay the plaintiff’s costs on a standard basis.

1. The first defendant argued that the plaintiff had run the proceeding in a way that caused considerable costs to be needlessly incurred. In particular, the plaintiff, notwithstanding there being solicitors on the record, personally intervened by email. Further, the plaintiff appeared to have been responsible for the Court Book which was voluminous, repetitive, difficult to follow and required unnecessary work to be undertaken by the first defendant in defending the proceeding.

1. The first defendant submitted that the Court should exercise its discretion to make a substantial reduction in the costs properly payable to the plaintiff, despite the success, of at least 50%.

1. I am persuaded that there should be some reduction in the costs awarded to the plaintiff notwithstanding the success of the application and the obvious effort that counsel for the plaintiff made in the preparation of the matter for hearing and the expeditious way in which the proceeding was argued at the trial.

1. The court book was voluminous, repetitive and difficult to follow, an observation made in the Judgement at [41]. The abandonment of all bar two of the grounds of appeal at the hearing meant that there was a substantial amount of work undertaken by the first defendant in preparation for the hearing which in effect was wasted. Whilst it is not uncommon for a limited number of grounds to be argued at the hearing, and counsel for both parties are to be commended for narrowing the issues for determination, it is not fair and just in the circumstances for all of the plaintiff’s costs to be paid by the first defendant.

1. As against this, the plaintiff was successful in setting aside the decision below and as a consequence the costs of prosecuting the proceeding should substantially follow the event.

1. In the circumstances, I will order that the first defendant pay 80% of the plaintiff’s costs of the proceeding of the standard basis to be agreed and failing agreement to be taxed by the Costs Court. I will also order that the first defendant be granted an indemnity certificate pursuant to s 4 of the Appeals Costs Act 1998 (Vic).