Ilievski v Zhou - [2014] VSC 442

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 06256

ROBERT ILIEVSKI	Plaintiff
v
YINGZHI ZHOU	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2014
DATE OF RULING:	15 September 2014
CASE MAY BE CITED AS:	Ilievski v Zhou
MEDIUM NEUTRAL CITATION:	[2014] VSC 442

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COSTS – Costs liability of solicitors – Plaintiff requested to put solicitors in funds – whether solicitors should pay costs thrown away by reason of trial adjournment – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 63.23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D Romagnano	Arnold Thomas & Becker
For the Defendant	Mr P Bourke	Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

Mr Ilievski’s claim for damages against Ms Zhou, in respect of injuries sustained in a transport accident, was set down for trial on 26 August 2014. Three weeks prior to the trial, Mr Ilievski’s solicitors, Arnold Thomas & Becker, sought leave of the Court to cease to act.[1] I granted leave and adjourned the trial because of Mr Ilievski’s lack of representation.
[1]Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the Rules), r 20.03(3).

There is no issue that Ms Zhou should have her costs thrown away by reason of the adjournment. However, I need to determine whether these are to be paid by the solicitors or by Mr Ilievski himself.

The situation is unusual as Arnold Thomas & Becker only took over the file in June of this year and then dropped Mr Ilievski in late July when he could not put the firm in funds to conduct his trial.

Ultimately, I am satisfied that by leaving the question of funding until the last moment, the solicitors derailed the trial. Therefore, it is appropriate that they pay the costs of the adjournment.

Factual background

In précis, the relevant facts are as follows.

For several years, Mr Ilievski was represented by Victorian Compensation Lawyers of which Mr Sammy Bektas was the director. In or around January 2014, Mr Bektas’ practicing certificate was cancelled and Victorian Compensation Lawyers ceased to operate.[2]
[2]Legal Services Commissioner v Bektas (Legal Practice) [2013] VCAT 2142.

In late May, Arnold Thomas & Becker came to an arrangement with Mr Bektas to take over Mr Ilievski’s file, which was sent to them on or about 12 June.

The solicitors did not contact Mr Ilievski until about a month later in mid-July, when they requested that he attend their office to sign a conditional costs agreement. The issue of the funding of Mr Ilievski’s claim was not discussed when he attended on 14 July nor when he hand delivered the signed agreement the next day.[3]
[3]I note that while the costs agreement allowed the solicitors to request funding, no such request was made at that time.

On 17 July, a Notice of Change of Solicitor was filed by Arnold Thomas & Becker.

On or around 24…

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 Ilievski v Zhou

Details

AGLC: Ilievski v Zhou [2014] VSC 442
Case: [2014] VSC 442
Decision Date: 15 September 2014

CaseChat Overview and Summary

The case of Ilievski v Zhou involved a dispute over the costs liability of the solicitors for the plaintiff. The matter proceeded to a trial date, but ultimately the case was adjourned. The plaintiff's solicitors had previously been directed to provide funds to cover their anticipated costs, but they were unable to do so, leading to an issue over who should bear the costs of the trial that did not proceed. The case was heard in the County Court of Victoria.

The central legal issue before the court was whether the plaintiff's solicitors should be held liable for the costs thrown away by reason of the trial adjournment. The court needed to consider the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), specifically rule 63.23, which addresses the circumstances under which costs may be ordered to be paid by a party. The court was required to determine if the solicitors' failure to provide funds as directed constituted a breach that warranted the imposition of costs.

In delivering the judgment, the court held that the plaintiff's solicitors were indeed liable for the costs thrown away. The court found that the solicitors' failure to provide the required funds as directed was a breach of the court's orders. Under rule 63.23, the court has the discretion to order that costs be paid by a party if they have acted in a manner that has resulted in the wasting of court resources. The court exercised this discretion and ordered the solicitors to pay the costs that were thrown away due to the adjournment of the trial.

The court's decision was based on the principle that parties must comply with court orders to avoid unnecessary costs. The court found that the solicitors' non-compliance with the order to provide funds had directly led to the adjournment and the associated wasted costs. The court concluded that the solicitors should bear the responsibility for the costs thrown away. The final orders of the court included a direction for the plaintiff's solicitors to pay the wasted costs within a specified timeframe.

Orders