Giller v Procopets - [2012] VSC 658

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COSTS COURT

S CI 2010 04742

ALLA GILLER	Applicant
v
BORIS PROCOPETS	Respondent

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JUDGE:	WOOD AsJ
DATE OF DECISION AND REASONS ON REVIEW	25 October 2012
CASE MAY BE CITED AS:	Giller v Procopets
MEDIUM NEUTRAL CITATION:	[2012] VSC 658

DECISION AND REASONS ON REVIEW OF TAXATION

BACKGROUND

On 14 March 2012 the Applicant filed a Notice of Review pursuant to Rule 63.56.2 of the Supreme Court (General Civil Procedure) Rules 2005. The proceedings (“Review”) therefore relate to rulings made by a Costs Registrar in a taxation completed 8 March 2012. The taxation was to quantify the Applicant’s costs arising from paragraph 1 (c) of an order of the Court of Appeal on 8 April 2009 in proceeding AS CI 1999 7804 (reported at [2008] VSCA 236), with such costs to be paid by the Respondent to the extent of 75%. Paragraph 1 (c) deals with the costs of the proceeding before Gillard J (reported at [2004] VSC 113) in proceeding S CI 1999 7804. My reasons of 3 May 2012 deal with the review of taxation of the costs of the actual appeal.

The base figure claimed in the bill of costs was $569,368.25. The individual who drew the bill then applied a 25% reduction to all the costs including the costs of the taxation. This issue features in the reasons below. The bill was reduced to $275,989.01 on taxation. The Notice of Review sought to review rulings made in relation to 29 items.

The review was listed for hearing on 12 July 2012. On that day the parties appeared and the Respondent applied for an adjournment based on a medical certificate of Dr Lebedev, a general practitioner, who certified that the Respondent was receiving medical treatment for depression and was unfit to conduct court proceedings for 3 months. The Applicant did not oppose the adjournment per se but proposed that the review proceed on that day by way of oral submissions with the Respondent to be given the opportunity to participate by way of written submission in due course.

The Respondent consented for the matter to be conducted by way of written submission. Having regard to the content of the Respondent’s medical certificate, I formed the view that it was not appropriate for the Applicant to present oral argument on 12 July 2012 and the Respondent be required to take notes and digest the Applicant’s oral submission without the benefit of having it committed to writing, given his medical condition.

Directions were given for written submissions to be filed on behalf of the Applicant by 19 July 2012, with the Respondent given until 12 October 2012 to respond. Costs of the day were ordered to be costs in the Review. At the hearing on 12 July 2012, the Applicant withdrew objection to items 465, 582 (the reading component), and 1241, thereby reducing the scope of the Review in a minor way.

The Respondent did not file any…

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 Giller v Procopets

Details

AGLC: Giller v Procopets [2012] VSC 658
Case: [2012] VSC 658
Decision Date: 25 October 2012

CaseChat Overview and Summary

In Giller v Procopets, the Applicant sought a review of a taxation order made by a Costs Registrar. The Respondent was ordered by the Court of Appeal to pay 75% of the Applicant’s costs due to the Applicant's conduct during the proceedings. The Applicant argued that the 25% reduction should not apply to the costs of the taxation. The court held that the reduction applied to the costs of the taxation unless there was conduct in the taxation that would alter that position. The court also noted that the 25% discount applied to the costs of the whole proceeding, including the costs of the taxation. The court varied the taxation figure from $275,989.01 to $275,125.91 due to an error in the calculation.

The legal issues in this case were whether the 25% reduction applied to the costs of the taxation and whether the Costs Registrar had the discretion to make an order for the costs of the taxation that potentially altered the burden of costs in the judgment or any percentage reduction in entitlement to costs arising from the judgment. The court held that the reduction applied to the costs of the taxation unless there was conduct in the taxation that would alter that position and that the Costs Registrar had the discretion to make an order for the costs of the taxation that potentially altered the burden of costs in the judgment or any percentage reduction in entitlement to costs arising from the judgment.

Orders