Johnston v Dimos Lawyers - [2019] VSC 462

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COSTS COURT

COSTS COURT LIST

S ECI 2018 02451

IN THE MATTER of Section 198(1) of the Legal Profession Uniform Law (Victoria)

BETWEEN

LUKE JOHNSTON	Applicant
v
LDA LEGAL PTY LTD (ABN 52 614 167 994) TRADING AS DIMOS LAWYERS	Respondent

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JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2019
DATE OF DECISION & REASONS:	19 July 2019
CASE MAY BE CITED AS:	Johnston v Dimos Lawyers
MEDIUM NEUTRAL CITATION:	[2019] VSC 462

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COSTS COURT – Legal Profession Uniform Law 2014 – Costs agreement void for non compliance with disclosure – Sections 174 and 178 – Basis of assessment – Sections 6 and 172 – Fixed costs legislative provision.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Lovell	Davis & De La Rue
For the Respondent	Ms S Cherry	Dimos Lawyers

HIS HONOUR:

This proceeding was filed on 21 November 2018. The respondent acted for the applicant in two proceedings. The main proceeding was in relation to his Family Law issues which culminated in proceedings in the Federal Circuit Court, and the minor proceeding was in relation to an intervention order. The applicant is seeking to review the respondent’s bills of costs totalling $253,691.29.[1]
[1]Quantified at only $236,609.66 by the Respondent in a letter dated 29 January 2019.

The parties identified a preliminary issue to be determined, namely the basis on which the respondent’s costs are to be assessed.[2] The hearing was held on 27 June 2019 at which time the decision was reserved. I now publish the decision and reasons.
[2]Order made 13 March 2019 in ‘Other matters’.

The applicant relied upon a Notice of Dispute dated 15 February 2019, an affidavit of Raymond John De La Rue sworn 18 April 2019, and two written submissions dated 18 April 2019 and 11 June 2019.

The respondent relied upon Cost Agreements, cost disclosure material, and a cash account filed on 29 January 2019, a Notice of Dispute dated 26 February 2019, an affidavit of Trifon Dimos sworn 17 May 2019 and written submissions dated 17 May 2019.

There was no dispute that there were two Cost Agreements entered into between the parties. The one relating to the Family Law dispute was dated 18 February 2016 (‘Family Law Cost Agreement’) and it contained an initial written total costs estimate of $20,000. This therefore required updating pursuant to s 174(1)(b) of the Uniform Legal Profession Law 2014 (‘the Act’). The one in relation to the intervention order was dated 26 March 2018 (‘IVO Cost Agreement’). From the applicant’s Notice of Dispute filed, a charge of $4,150 is attributed to this second matter which rendered the initial written estimate of $5,500 accurate.[3] The estimate therefore did not require updating.
[3]Paragraph 4 of the Dimos affidavit sworn 17 May 2019 and paragraphs 13 and 14 of the Applicant’s Notice of Dispute dated 15 February 2019.

The applicant relied on s 178(1)(a) of the Act to contend that the…

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 Johnston v Dimos Lawyers

Details

AGLC: Johnston v Dimos Lawyers [2019] VSC 462
Case: [2019] VSC 462
Decision Date: 19 July 2019

CaseChat Overview and Summary

The proceedings in Johnston v Dimos Lawyers involved a dispute concerning a costs agreement between the plaintiff, Johnston, and the defendant, Dimos Lawyers. The matter was heard in the Costs Court of Western Australia, where Johnston sought a resolution regarding the validity of the costs agreement and associated legal fees. The crux of the case revolved around whether the costs agreement was void due to the defendant's failure to comply with disclosure requirements under the Legal Profession Uniform Law 2014. This non-compliance raised questions about the enforceability of the agreement and the appropriate basis for assessing costs.

The primary legal issues before the court were whether the costs agreement was void due to non-compliance with disclosure obligations under sections 174 and 178 of the Legal Profession Uniform Law 2014 and, if so, what the appropriate basis for assessing costs would be. The court had to determine if the failure to disclose material facts constituted a breach severe enough to render the agreement unenforceable and, if the agreement was void, what the correct method for calculating costs would be under sections 6 and 172 of the same legislation. The defendant argued that despite the non-compliance, the costs agreement should still be enforceable and sought to uphold its validity.

In its judgment, the court found that the costs agreement was indeed void due to the defendant's failure to comply with the disclosure requirements. The court held that the non-disclosure of material facts was a significant breach, rendering the agreement unenforceable. Consequently, the court assessed the costs based on the fixed costs provisions under the legislation. The court ruled that the appropriate basis for determining the costs was to apply the fixed costs legislative provision, as the void agreement could not be enforced. This decision underscored the importance of compliance with disclosure requirements in the context of costs agreements within the legal profession.

Orders