Kuek v Devflan Pty Limited - [2012] VSC 327

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2004 09228

GABRIEL KUEK	Plaintiff
– and –
DEVFLAN PTY LIMITED and LJOBOMIR NIKOLOVESKI	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2012
DATE OF JUDGMENT:	7 August 2012
CASE MAY BE CITED AS:	Kuek v Devflan Pty Limited and anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 327	Revised 10 August 2012

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LEGAL PRACTITIONERS ― Overarching Obligations under Part 2.3 of the Civil Procedure Act ― Requirement to file and serve review application within 14 days ― Application not filed until 175 days and not served until 183 days after the order ― Whether Court registry at fault ― Lawyer’s responsibilities ― Deliberate failure to inform respondents of intended review ― Protracted delay ― Contravention of overarching obligations ― Review application set aside ― Civil Procedure Act (No 47 of 2010) s 17, 20, 21, and 25.

COSTS ― Taxation of costs ― Right to seek review of costs order from a Judge of the Court ― Non compliance with time limit for filing of review ― Whether non compliance attributable to inattention or inadvertence by Court registry ― Application for review set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Perkins	Access Law
For the Defendants	Mr R Heath	Brygel Lawyers

HIS HONOUR:

A Judge of the Court can be asked to review an order in the Costs Court. Notice of such an application must be filed and served within 14 days of the order. In this case, such a notice was not filed until 175 days, and not served until 183 days, after the order. The respondent complains the notice is grossly out of time and ought be set aside, more so as the review lacks merit. The appellant says that the delay was not his fault; that it was the fault of the Supreme Court registry and he ought therefore be excused for the delay. It sounds uncomplicated. It is anything but.

I have come to the view in some truly exceptional circumstances that the delay is too great to be excused, and the appellant cannot say it was not his fault. There have been breaches of the overarching obligations under the Civil Procedure Act. I would refuse an extension of time, and set aside the notice of review.

The appellant Gabriel Kuek is a practising and experienced lawyer in the field of litigation. There is a costs order against him as litigant for his unsuccessful appeal to the Trial Division of this Court and subsequently in the Court of Appeal. The case and the attempts at taxation of the costs has a prolonged history. But, to expose immediately the present dispute, I isolate an order made on 29 September 2011 by Associate Justice Wood as Costs Judge. His Honour, with written reasons, made an order taxing the respondents’ costs at $38 730.20. That was an order made on a review of an earlier taxation…

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 Kuek v Devflan Pty Limited

Details

AGLC: Kuek v Devflan Pty Limited [2012] VSC 327
Case: [2012] VSC 327
Decision Date: 7 August 2012

CaseChat Overview and Summary

In the matter of Kuek v Devflan Pty Limited, the dispute arose from a legal professional's failure to comply with the procedural requirements set forth in Part 2.3 of the Civil Procedure Act 2010 (Vic). The defendant, Devflan Pty Limited, sought to set aside a review application filed by the plaintiff's legal representative, Mr. Kuek, due to significant delays in filing and serving the application. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the plaintiff's lawyer had contravened the overarching obligations under the Civil Procedure Act by filing and serving the review application well beyond the stipulated 14-day period. Additionally, the Court had to determine whether the protracted delay was attributable to inattention or inadvertence by the Court registry, which could potentially excuse the non-compliance with the statutory time limits.

The Court held that the plaintiff's lawyer had deliberately failed to inform the respondents of the intended review and had not complied with the mandatory procedural requirements. The Court found that the delay in filing and serving the application was not due to any fault on the part of the registry but was instead a result of the lawyer's neglect. The Court concluded that the lawyer's actions amounted to a contravention of the overarching obligations under the Civil Procedure Act. Consequently, the review application was set aside. Furthermore, the Court addressed the issue of costs, ruling that the plaintiff's application for a review of the costs order was also set aside due to non-compliance with the time limit for filing the review.

The Court's final orders included setting aside the review application and dismissing the plaintiff's application for a review of the costs order. This decision underscores the importance of adhering to statutory time limits and the overarching obligations imposed on legal practitioners to ensure the expeditious and fair administration of justice.

Orders