Guneser v Aitken Partners - [2020] VSC 210

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2018 01010

GENCO GUNESER	Appellant
v
AITKEN PARTNERS PTY LTD (ACN 128 769 602) (trading as ‘Aitken Partners’)	Respondent

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2020
DATE OF JUDGMENT:	24 April 2020
CASE MAY BE CITED AS:	Guneser v Aitken Partners
MEDIUM NEUTRAL CITATION:	[2020] VSC 210

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APPEALS ─ Appeal from a decision of a Costs Judge affirming a decision of a Costs Registrar in respect of the taxation of costs ─ Where appeal is in the nature of rehearing ─ No legal, factual or discretionary error shown ─ Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared for himself
For the Defendant	Ms C Harris QC with Ms L Dawson	Aitken Partners Pty Ltd

HIS HONOUR:

Introduction

The appellant, Genco Guneser, has appealed a decision of an associate judge who reviewed the orders made by a costs registrar in taxing legal costs. The associate judge affirmed the cost registrar’s assessment of the professional costs and disbursements payable by Mr Guneser to the respondent, Aitken Partners, an incorporated legal practice, for acting on his behalf in litigation in the County Court of Victoria.

But the associate judge disallowed Aitken Partners’ professional costs for acting for itself on the taxation and, further, refused to award Aitken Partners its professional costs for acting for itself on the review. Instead, in each instance, the associate judge allowed Aitken Partners only its disbursement costs. Aitken Partners has cross-appealed against each of those orders.

In these reasons I explain my decision to dismiss Mr Guneser’s appeal. In due course I will publish separate reasons for decision in respect of Aitken Partner’s cross-appeal.

Background

On 14 February 2018 Aitken Partners commenced an exchange with Mr Guneser for the purpose of negotiating a costs agreement in accordance with the provisions of the Legal Profession Uniform Law Application Act 2014 (Vic) (Uniform Law). The agreement concerned the costs for the firm to act for Mr Guneser in a County Court proceeding against a Mr Gultekin Dolas in relation to a joint venture to carry out a property development. Ultimately, Mr Guneser signed a costs agreement on 2 March 2018. At his request, the agreement was a fixed fee agreement.

Significantly, the primary clause in the agreement (clause 1) was as follows –

We have agreed a fixed fee of $55,000 plus GST for all necessary work in relation to your dispute with Mr Dolas up to and including the County Court trial set down for 29 May 2018. For the avoidance of doubt, this amount is payable whether or not the matter settles at any stage up (sic) before the commencement or conclusion of the trial.

Additionally, the agreement provided for what would occur should Mr Guneser cease using the firm as his solicitors (clause 7):

You may end our engagement by written notice at any time. If this occurs then any amount outstanding from…

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 Guneser v Aitken Partners

Details

AGLC: Guneser v Aitken Partners [2020] VSC 210
Case: [2020] VSC 210
Decision Date: 24 April 2020

CaseChat Overview and Summary

In this case, the appellant, Guneser, sought to challenge the decision of a Costs Judge who had affirmed a decision made by a Costs Registrar regarding the taxation of costs. The appeal was against the decision made in the Supreme Court of New South Wales. The primary dispute revolved around the allocation and calculation of costs between the parties, specifically in relation to the costs incurred during the litigation process.

The legal issues before the court were whether the Costs Judge had erred in law, fact, or discretion when affirming the Costs Registrar's decision. The appellant contended that the Costs Judge had failed to properly consider certain factors that should have resulted in a different taxation of costs. The court needed to determine if there was any merit in the appellant's arguments that the decision was unjust or that it demonstrated a failure in the proper exercise of judicial discretion.

The court found that the Costs Judge had conducted a thorough review of the matter and had properly applied the relevant legal principles in arriving at the decision. The court was satisfied that there was no legal, factual, or discretionary error in the Costs Judge's decision. The court emphasised the importance of deference to the Costs Judge's assessment, particularly in matters of cost taxation where the exercise of discretion is paramount. Consequently, the appeal was dismissed.

Orders