Icbudak v Icbudak

[2012] VCC 20

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-02243

MEHMET ICBUDAK	Plaintiff
v.
NIYAZI ICBUDAK and ESME ICBUDAK	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2012
DATE OF JUDGMENT:	8 February 2012
CASE MAY BE CITED AS:	Icbudak v. Icbudak & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 20

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Monies held in trust by solicitors – How monies should be disbursed – Unsatisfied costs orders.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Icbudak in person
For the Defendants	Mr N. Icbudak in person
For the Plaintiff’s former solicitors	Ms M. Mandie	De Marco Lawyers

HIS HONOUR:

1I gave judgment in this matter on 16 December 2011. There was one outstanding matter which has been further debated today. That is the question of how moneys currently retained in a cash investment account by solicitors, Poloni & Galgano, should be disbursed.

2Following the sale of one of the completed units in July 2009 for the sum of $525,000, the balance of moneys, being $21,642.55, after the payment of the expenses of sale and the discharge of mortgage, was invested by the solicitors on 1 October 2010. The parties to the proceeding and their former solicitors, De Marco Lawyers and MDM Legal Services Pty Ltd for the plaintiff and Mirabelli D’Ortenzio & Co for the defendants and Poloni & Galgano were, on 21 December 2011, sent a copy of the orders I made on 16 December 2011.

3Today I have received correspondence from Mirabelli D’Ortenzio & Co, comprising two letters dated 7 February 2012, addressed to Mr Neset Icbudak, enclosing a bill of costs. The bill purports to set out the costs the defendants’ former solicitors would be entitled to up to the date of filing the notice of ceasing to act, including reserved costs, to be taxed on a party party basis on scale D. The total amount of the bill is $21,961.40, which includes disbursements of $6,426.20. These documents were produced to the Court by Mr Neset Icbudak on behalf of the defendants.

4Ms Mandie of Counsel appeared on behalf of De Marco Lawyers and MDM Legal Services Pty Ltd. There are costs outstanding from the plaintiff to MDM Legal Services in respect of which judgment was obtained on 31 October 2011 from the Broadmeadows Magistrates’ Court for $20,844.53, interest of $203.88 and costs of $1,310.

5Early in this proceeding, judgment had been entered on 10 June 2010 against the defendants in default of appearance.  Execution was later issued. An application to set aside judgment was later allowed by His Honour Judge Lacava on 22 July 2010. Judge Lacava ordered that, “The defendants pay the plaintiff’s costs of this application, to be taxed in default of agreement”.

6A bill of costs was prepared in accordance with Judge Lacava’s order and forwarded to the defendants’ solicitors. The bill claimed the total sum of $7,033.22, which included disbursements of $1,546.40. On behalf of, the defendants, Mr Neset Icbudak submitted that the moneys held by Poloni & Galgano should be disbursed wholly to his parents or to their former solicitors so that his parents would no longer have any further liability in respect of the costs of the proceeding. He informed me that there were other accounts his parents owed in respect of the property. These matters were not part of the proceeding and I do not consider that I can take account of them.

7Mr Mehmet Icbudak informed me that he had paid some costs to his former solicitors, but because of his personal financial position, had been unable to continue to pay the fees that were required. In the submissions he made, he was more supportive of the position advanced by his brother on behalf of their parents.

8Mr Heydon Hawk was a witness in the proceeding. He wished also to be heard on the application and I allowed him to address the Court. Mr Hawk was engaged by Mr Mehmet Icbudak to carry out the construction of the two units. It was apparent from the evidence that I heard at the trial that Mr Hawk attempted to assist Mr Mehmet Icbudak, and probably also his parents, to achieve a satisfactory conclusion to the project. The project was completed but Mr Hawk was substantially out of pocket.

9Unfortunately, he was not the only person in this position as it appears that Mr Mehmet Icbudak had also borrowed significant amounts from a number of other persons, both relatives and friends within the Turkish community. There is only a limited pool of funds presently available to meet many demands. The funds have been invested since 1 October 2010. Probably the total of the funds is presently about $23,500.

10I consider that the most appropriate course is to allow part of these moneys to be disbursed to MDM Legal services Pty Ltd in respect of the costs order made by Judge Lacava in the plaintiff’s favour as a consequence of the need to set aside the default judgment and execution upon that judgment. I consider that the balance of the funds should be paid to Mirabelli D’Ortenzio & Co in accordance with the costs order I made on 16 December 2011.

11I am conscious also that the trial of this proceeding was only able to go ahead because of the cooperation of both sets of solicitors. The solicitors provided the documents that they held on behalf of their clients to the Court, in the case of De Marco Lawyers, to the Court directly, and in the case of Mirabelli D’Ortenzio & Co, to the defendants. Both, because of outstanding costs orders, were entitled to claim a lien in respect of those documents and De Marco Lawyers had maintained that lien, but were nevertheless prepared to make the file of original documents available to the Court for use in the trial.

12Because both parties were effectively self-represented, much of the responsibility for the conduct of the proceeding was assumed by the Court, as the parties themselves and, in the defendants’ case, Mr Neset Icbudak, had little appreciation of the issues in the case and the evidence necessary to be presented in relation to those issues. It has therefore only been possible for a determination to be made in relation to the parties disputes with the cooperation of the lawyers.

13Both bills of costs which I have referred to have not been taxed, being MDM Legal Services Pty Ltd’s bill in respect of the costs ordered by Judge Lacava and Mirabelli D’Ortenzio & Co’s bill of costs in respect of the costs ordered by me on 16 December 2011. It is necessary, in my view, that I should decide the matter today without requiring the parties to incur further expense. In the circumstances, I consider that the appropriate order to make is to provide that Poloni & Galgano disburse the moneys held by them as to $4,500 to MDM Legal Services Pty Ltd and as to the balance, including accrued interest, to Mirabelli D’Ortenzio & Co on account of the costs order made by me in the defendants’ favour on 16 December 2011.

14The orders I will make are as follows:

a.By 4pm on 15 February 2012, Poloni & Galgano Solicitors are directed to disburse the proceeds of the cash investment account with the Commonwealth Bank, Coburg branch, including accrued interest, as follows:

i.$4,500 to MDM Legal Services Pty Ltd, c/- De Marco Lawyers, 794A Pascoe Vale Road, Glenroy, on account of the order for costs made by His Honour Judge Lacava on 22 July 2010 for the payment of the plaintiff’s taxed costs up of the application to set aside judgment by the defendants;

ii.The balance to Mirabelli D’Ortenzio & Co of 2/23 Louis Street, Airport West, on account of the order for the defendants’ costs of the proceeding made by His Honour Judge Anderson on 16 December 2011.

b.A copy of this order shall forthwith be forwarded by the Court to Poloni & Galgano and to Mirabelli D’Ortenzio & Co.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 8 February 2012.

Dated: 8 February 2012

Caroline Dawes

Associate to His Honour Judge Anderson