Gavriliuc v Geron - [2013] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. S CI 2012 7193

ALEXANDER GAVRILIUC VALENTINA GAVRILIUC	Plaintiffs
v
CHAIM GERON	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2013
DATE OF JUDGMENT:	20 May 2013
CASE MAY BE CITED AS:	Gavriliuc & Anor v Geron
MEDIUM NEUTRAL CITATION:	[2013] VSC 263

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LEGAL PRACTITIONERS – Application to allow costs review by the Costs Court out of time – Defendant had already obtained judgment for his costs under the Fair Trading Act 1999 (Vic) – Whether it would be ‘just and fair’ for the application to be dealt with by the Costs Court having regard to the delay and the reasons for delay – Legal Profession Act 2004 (Vic), s 3.4.38(6).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Pogoriller
For the Defendant	Mr S Warne	Mr C Geron

HER HONOUR:

Introduction

This is an application by the plaintiffs for a determination that their application for costs review by the Costs Court[1] be dealt with after the 12 month period in which an application for costs review can be made pursuant to s 3.4.38(5) of the Legal Profession Act2004 (Vic).
[1]Made by summons dated 24 December 2012.

Section 3.4.38(6) of the Legal Profession Act provides that an application for costs review made out of time may be dealt with by the Costs Court if, relevantly, a Judge of the Court determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for review to be dealt with after the 12 month period.

In issue are four bills of costs rendered by the defendant, who is the applicants’ former solicitor, the last of which is dated 28 April 2011, and three invoices from the barrister retained on behalf of the applicants, the last of which is dated 22 March 2011.

The plaintiffs rely on the affidavits sworn by their new solicitor, Mr Boris Pogoriller, on 24 December 2012 and 29 April 2013, and on the affidavit of the second plaintiff sworn on 27 February 2013.

The defendant has made an affidavit in reply dated 10 April 2013.

The background to the plaintiffs’ application is as follows:

(a)The defendant acted for the first plaintiff and a company previously controlled by the first plaintiff (now deregistered) in a lease dispute over a period of months in 2011;
(b)The first plaintiff, the second plaintiff and the company were parties to a costs agreement with the defendant;
(c)The defendant rendered bills on 27 January 2011, 16 February 2011, 13 April 2011 and 28 April 2011 totalling $31,026.00. Counsel’s fees amounted to a further $5,280.00;
(d)The plaintiffs paid less than half the defendant’s fees. The defendant paid the amounts owing to counsel from his own pocket;
(e)In about May 2011, the defendant brought proceedings under s 108 of the Fair Trading Act1999 (Vic) in the Victorian Civil and Administrative…

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 Gavriliuc v Geron

Details

AGLC: Gavriliuc v Geron [2013] VSC 263
Case: [2013] VSC 263
Decision Date: 20 May 2013

CaseChat Overview and Summary

The case of Gavriliuc v Geron involved a dispute between the parties in relation to costs incurred during legal proceedings. The defendant had previously obtained judgment for their costs under the Fair Trading Act 1999 (Vic). The plaintiff sought to challenge these costs by applying to the Costs Court out of time, under section 3.4.38(6) of the Legal Profession Act 2004 (Vic). The court was required to determine whether it would be just and fair to permit the plaintiff to bring the application for a costs review despite the delay, and if so, to remit the matter to the Costs Court for determination.

The primary legal issue before the court was whether it was just and fair to allow the plaintiff's application to be dealt with by the Costs Court, despite the delay and the reasons for the delay. The court considered the factors outlined in section 3.4.38(6) of the Legal Profession Act 2004 (Vic), which required the court to take into account the extent of the delay, the reasons for the delay, and any other relevant matters. The court also considered whether the defendant had been prejudiced by the delay and whether the plaintiff had a reasonable excuse for the delay.

The court found that it would be just and fair to remit the matter to the Costs Court for determination. The delay was significant, but the reasons for the delay were not unreasonable. The court found that the plaintiff had not acted unreasonably in delaying the application and that the defendant had not been prejudiced by the delay. The court considered that the application should be remitted to the Costs Court to determine the merits of the plaintiff's challenge to the costs. The court noted that the defendant had already obtained judgment for their costs, and the plaintiff had not successfully appealed that judgment.

The court remitted the matter to the Costs Court for determination of the plaintiff's application to review the costs. The court ordered that the application be heard and determined by the Costs Court, and that the parties bear their own costs of the application. The court also noted that the defendant was entitled to costs of the remitted application, which were to be taxed and paid by the plaintiff.

Orders