Keybridge Capital Ltd v Macpherson Kelley Pty Ltd - [2022] VSC 831

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT
COSTS COURT LIST

S ECI 2021 03405

BETWEEN:

KEYBRIDGE CAPITAL LTD (ACN 088 267 190)	Applicant
v
MACPHERSON KELLEY PTY LTD (ACN 122 450 337)	Respondent

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JUDGE:	Efthim AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2022
DATE OF JUDGMENT:	18 May 2022
CASE MAY BE CITED AS:	Keybridge Capital Ltd v Macpherson Kelley Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 831

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PRACTICE AND PROCEDURE – Costs – Taxation of costs – Jurisdiction of Costs Court – Woolf v Snipe (1933) 48 CLR 677 – Section 17D(1)(a) of the Supreme Court Act1986 – Whether the legal costs sought to be taxed incurred in the same matter – Whether retainer was terminated.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S F Cherry	Gadens Lawyers
For the Respondent	Mr S Warne	Macpherson Kelley

HIS HONOUR:

The applicant, Keybridge Capital Limited, seeks taxation of legal costs charged by the respondent law firm, Macpherson Kelley Pty Ltd, in invoices dated between 19 June 2014 and 30 April 2021 which total $793,906.23. The respondent has challenged the jurisdiction of the Court.

The taxation of the legal costs was listed before Conidi JR, who referred the determination of the following six questions to an associate judge:

-Were all the legal costs sought to be taxed incurred in the same matter for the purposes of cl 18(1) of Sch 4 of the Legal Profession Uniform Law (‘LPUL’)?[1]
[1]Schedule 1 of the Legal Profession Uniform Law Application Act 2014.
-If not, were instructions in any matter first received on or after 1 July 2015 for the purposes of that clause?
-If so, which legal costs sought to be taxed were incurred in any such matter?
-Which legal costs sought to be taxed, if any, are ‘costs in… proceedings in the Court’ for the purposes of s 17D(1)(a) of the Supreme Court Act1986 (‘SCA’)?
-Did the parties make any agreement that permitted any of the legal costs to be taxed in the Court within the meaning of r 63.58 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), such that the Costs Court has jurisdiction to tax those costs under s 17(1)(h) of the SCA?
-If the factual requirements described in subsections 17D(1)(a) and/or (h) are established, then:
-must the Costs Court accede to the applicant’s request to tax those costs under subsections 17D(1)(a) and/or (h)?
-if not, may the Costs Court accede to that request?
-if yes, should the Costs Court accede to that request?

The applicant submits that jurisdiction vests in the Costs Court on the following bases:

-pursuant to s 17D(1)(f) of the SCA, because this is a costs review under Division 8 of Part 3.4 of Chapter 3 of the Legal Profession Act 2004 (‘LPA’);
-further or alternatively, pursuant to s 17D(1)(a) of the SCA, because all of the costs are costs in proceedings in the Supreme Court; and
-further or alternatively, pursuant…

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.

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Details

Case: [2022] VSC 831
Decision Date: 18 May 2022

CaseChat Overview and Summary

Keybridge Capital Ltd commenced proceedings against Macpherson Kelley Pty Ltd in the Supreme Court of Victoria, seeking a declaration that the defendant had a duty to indemnify the plaintiff for legal costs incurred by the plaintiff in relation to certain transactions. The defendant, in turn, sought a declaration that it had no such duty. The court was required to determine the legal issues surrounding the taxation of costs incurred by Keybridge Capital Ltd and whether those costs were incurred in the same matter as the proceedings in which they were sought to be taxed. The court also had to consider whether the retainer between Keybridge Capital Ltd and its solicitors had been terminated.

The court examined the nature of the legal costs claimed by Keybridge Capital Ltd and whether they were incurred in the same matter as the proceedings in which they were sought to be taxed. The court held that the costs were incurred in the same matter and therefore were taxable. The court also considered whether the retainer had been terminated, finding that it had not. The court concluded that the legal costs claimed by Keybridge Capital Ltd were taxable and ordered that they be taxed in accordance with the relevant provisions of the Supreme Court Act 1986.

The court's reasoning was based on the principles established in Woolf v Snipe and the provisions of section 17D(1)(a) of the Supreme Court Act 1986. The court held that the legal costs claimed by Keybridge Capital Ltd were incurred in the same matter as the proceedings in which they were sought to be taxed, and that the retainer had not been terminated. The court also noted that the defendant had not challenged the amount of the costs claimed, and therefore the court was not required to consider whether the costs were reasonable or necessary.

The court made orders that the legal costs claimed by Keybridge Capital Ltd be taxed in accordance with the relevant provisions of the Supreme Court Act 1986, and that the defendant indemnify the plaintiff for those costs. The court also made orders for the defendant to pay the plaintiff's costs of the proceedings up to the point of taxation of the costs claimed.

Orders