Kuek v Devflan Pty Ltd

Case [2011] VSCA 25


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3746

GABRIEL KUEK

Applicant

v

DEVFLAN PTY LTD & ANOR

Respondents

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JUDGES:

NEAVE, HARPER and HANSEN JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

16 June 2010

DATE OF JUDGMENT:

10 February 2011

MEDIUM NEUTRAL CITATION:

[2011] VSCA 25

JUDGMENT APPEALED FROM:

Kuek v Devflan Pty Ltd [2009] VSC 91 (Beach J)

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COSTS – Costs orders against applicant – Applicant objected to respondents’ bill of costs – Applicant alleged respondents had breached indemnity principle by recovering more on party/party taxation than actual liability to lawyers – Applicant sought production of disclosure and retainer letters – Respondents refused to produce – Respondents’ costs taxed at $39,105.20 by Taxing Master – Review by Taxing Master – Applicant renewed call for documents – Taxing Master refused to require production – Costs varied to $38,730.20 – Review by judge – Judge correctly required respondents to produce disclosure and retainer letters as documents relevant to alleged breach of indemnity principle – Judge refused to remit to Taxing Master – Judge found no breach of indemnity principle and dismissed review – Taxation fundamentally miscarried before Taxing Master and judge – Findings not open on evidence – Appeal allowed – Review remitted to Costs Judge. 

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APPEARANCES: Counsel Solicitors
For the Applicant Mr A W Sandbach Access Law
For the Respondents Mr I G Waller SC and
Mr R Antill
Brygel Lawyers

NEAVE JA:

  1. I have had the advantage of reading the judgment of Hansen JA in draft form and I agree for the reasons he gives that the appeal should be allowed.

HARPER JA:

  1. I also agree with Hansen JA.

HANSEN JA:

Introduction

  1. Gabriel Kuek (‘the applicant’) seeks leave to appeal from orders of a judge in the Trial Division made on 20 March 2009,[1] dismissing an application to review orders of the Taxing Master[2] made on a review on 8 February 2008 and 29 October 2008.

    [2]The office of Taxing Master has been replaced by that of Costs Judge, following the establishment of the Costs Court by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. Effective 31 December 2009, that Act inserted Division 2B in Part 2 of the Supreme Court Act 1986 which establishes the Costs Court within the Trial Division (s 17C) and provides that the Chief Justice must allocate an Associate Judge to be a Costs Judge of the Costs Court (s 17E). The Taxing Master, who was Wood AsJ, has been allocated to be and is presently the only Costs Judge and presides over the Costs Court.   

  1. For the reasons which follow, the orders of the judge and the Taxing Master should be set aside and the proceeding remitted to the Costs Judge for a fresh review in accordance with law.

Background

  1. The proceeding has a long and unfortunate history.  On 4 September 2003 the applicant brought a claim in the Magistrates’ Court against Devflan Pty Ltd and Mr Ljubomir Nikolovski (‘the…

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AGLC
Kuek v Devflan Pty Ltd [2011] VSCA 25
Case
[2011] VSCA 25
Decision Date

CaseChat Overview and Summary

Kuek commenced proceedings against Devflan Pty Ltd in the Supreme Court of Victoria, seeking a declaration that a contract was void for duress and seeking damages for deceit. Devflan applied for summary judgment which was dismissed. Kuek subsequently abandoned the claim for damages for deceit. Devflan applied for costs on the basis of the indemnity principle. Kuek objected to the costs bill, alleging that Devflan had breached the indemnity principle by recovering more on party/party taxation than their actual liability to their lawyers. Kuek sought production of disclosure and retainer letters to support this allegation. Devflan refused to produce these documents. The Taxing Master taxed Devflan’s costs at $39,105.20 and Kuek reviewed the taxation. The Taxing Master refused to require production of the disclosure and retainer letters and the review was dismissed. Kuek appealed to the judge, renewing the call for documents. The judge required Devflan to produce the disclosure and retainer letters but found no breach of the indemnity principle and dismissed the review. Kuek appealed to the Court of Appeal.

The Court of Appeal held that the judge’s findings were not open on the evidence. The judge should not have required production of the disclosure and retainer letters as they were not relevant to the alleged breach of the indemnity principle. The taxation fundamentally miscarried before the Taxing Master and the judge. The Court of Appeal allowed the appeal and remitted the review to the Costs Judge. The Court of Appeal held that the judge should not have required production of the disclosure and retainer letters as they were not relevant to the alleged breach of the indemnity principle. The judge’s findings were not open on the evidence and the taxation fundamentally miscarried before the Taxing Master and the judge. The review was remitted to the Costs Judge for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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