Kuek v Devflan Pty Limited

Case [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:

  1. 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. 

  1. 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.

  1. 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…

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Kuek v Devflan Pty Limited [2012] VSC 327
Case
[2012] VSC 327
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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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