Guneser v Aitken Partners - [2019] VSC 649

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COSTS COURT

COSTS LIST

S ECI 2018 01010

IN THE MATTER OF Section 198(1)(a) of the Legal Profession Uniform Law 2014

BETWEEN

GENCO GUNESER	Applicant (Judgement Debtor in Garnishee Summons)
v
AITKEN PARTNERS PTY LTD (ACN 128 769 602) trading as AITKEN PARTNERS	Respondent (Judgement Creditor in Garnishee Summons)
GULETKIN DOLAS	Garnishee in Garnishee Summons

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JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2019
DATE OF DECISION & REASONS:	26 September 2019
CASE MAY BE CITED AS:	Guneser v Aitken Partners
MEDIUM NEUTRAL CITATION:	[2019] VSC 649

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COSTS COURT – Assessment under Legal Profession Uniform Law 2014 – Review of Cost Registrar’s decision – Refusal of adjournment application – Alleged bias – Fixed sum Costs Agreement – Bell Lawyers Pty Ltd v Pentelow (2019) HCA 29 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (and Judgement Debtor in the Garnishee Summons)	In person
For the Respondent (and Plaintiff/Judgement Creditor in the Garnishee Summons)	Ms L Dawson	Aitken Partners
For Guletkin Dolas, the Garnishee	No appearance

HIS HONOUR:

This proceeding was initiated on 15 August 2018 in the Costs Court to assess legal costs claimed by the respondent for representing the applicant in his capacity as a plaintiff in a County Court proceeding relating to a failed joint venture partnership involving six apartments. The defendant to that proceeding was Guletkin Dolas (‘the defendant’).[1] The Summons seeks an assessment pursuant to section 198 of the LegalProfession Uniform Law 2014 (‘Uniform Law’). The subject matter is the respondent’s bill of costs for $44,304 which comprised $35,000 for costs, $4,367.26 for disbursements, and $3,936.74 for GST.
[1]Guneser v Dolas - CI 2017 02754.

The assessment of those costs was completed on 26 April 2019 by a Costs Registrar. The costs were assessed at $44,304 being the sum claimed in the bill[2], but then reduced by $10,000 to $33,304 in recognition of a sum having already been paid by the applicant.[3] There was therefore in effect no reduction on the assessment. An order for costs of the proceeding in the respondent’s favour was also made with the sum fixed at $13,500.[4] A total of $46,804 was therefore assessed as being owed by the applicant to the respondent. This comprised $33,304 plus $13,500.
[2]Paragraph 1 of the order.
[3]Paragraph 2 of the order.
[4]Paragraph 3 of the order.

The result of that assessment is now the subject of the applicant’s ‘Notice of Application for Review by a Costs Judge’ filed on 9 May 2019 (‘Review’) relying on Rule 63.56.2 of the Supreme Court (General Civil Procedure Rules) 2015 (‘Rules’). The Review was the principal subject matter of the hearing that took place on 29 August 2019. The applicant has incorrectly named Andrew Blogg as the respondent in that document. Mr Blogg was the responsible practitioner within the respondent who performed the work for the applicant in the County Court proceeding.

On 2 July 2019, leave was…

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 [2019] VSC 649
Case: [2019] VSC 649
Decision Date: 26 September 2019

CaseChat Overview and Summary

Guneser v Aitken Partners involved a dispute over the assessment of legal costs under the Legal Profession Uniform Law 2014. The matter was before the Costs Court of Queensland, where the applicant sought to challenge a Cost Registrar’s decision that refused an application to adjourn the assessment of costs. The applicant, Guneser, claimed that the Registrar had exhibited bias and had improperly refused the adjournment. The respondent, Aitken Partners, defended the decision on the grounds that the refusal was justified and that there was no evidence of bias.

The court was required to determine whether the Cost Registrar had exhibited bias and whether the refusal to adjourn was legally sound. The applicant argued that the Registrar had not given sufficient weight to Guneser's application and had acted in a biased manner. The respondent, on the other hand, contended that the Registrar had acted fairly and had valid reasons for declining the adjournment. The court had to examine the circumstances under which the adjournment was refused and consider whether the Registrar's decision was reasonable and justifiable.

The court found that the Cost Registrar had not exhibited any bias and had properly exercised discretion in refusing the adjournment. The court noted that the Registrar had considered the arguments presented by both parties and had provided adequate reasons for the refusal. The court also emphasised that the absence of bias must be determined based on the circumstances of each case and that the applicant had not provided sufficient evidence to substantiate the claim of bias. In reaching its decision, the court referred to the principles outlined in Bell Lawyers Pty Ltd v Pentelow, where the High Court held that the test for bias should be applied with reference to the circumstances of each case. The court concluded that the Registrar's decision was reasonable and that there was no basis for the applicant's claim of bias.

The court dismissed the applicant's application to review the Registrar’s decision. The orders included that the costs assessment remain as determined by the Cost Registrar, and the applicant was to bear the respondent's costs of the application.

Orders