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Kuek v Devflan Pty Ltd

Kuek v Devflan Pty Ltd

Case [2011] VSCA 25 10 February 2011

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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:

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:

I also agree with Hansen JA.

HANSEN JA:

Introduction

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.
[1][2009] VSC 91.
[2]The office of Taxing Master has been replaced by that of Costs Judge, following the establishment of the Costs Court by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008.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.

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

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…

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 Ltd

Details

AGLC: Kuek v Devflan Pty Ltd [2011] VSCA 25
Case: [2011] VSCA 25
Decision Date: 10 February 2011

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