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Kuek v Devflan Pty Ltd & Anor

Kuek v Devflan Pty Ltd & Anor

Case [2009] VSC 91 20 March 2009

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Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9228 of 2004

GABRIEL KUEK

Appellant

DEVFLAN PTY LTD
and
LJUBOMIR NIKOLOVSKI

First Respondent

Second Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	20 March 2009
CASE MAY BE CITED AS:	Kuek v Devflan Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 91

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COSTS – Review of orders of the Taxing Master – Party/party costs – Relevance of retainer – Costs awarded by way of indemnity for costs incurred by successful party – Sections 86 and 91 Legal Practice Act 1996 – Section 3.4.17 Legal Profession Act 2004 – Rule 63.57 Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Perkins	Access Law
For the Respondents	Mr R. Antill	Brygel Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Principles to be applied in conducting the review...................................................................... 4

The order of 8 February 2008........................................................................................................... 6

Ground 1: Items 1 to 276 inclusive................................................................................................. 7

Ground 2: Items 17, 22, 68, 87, 98, 111, 151, 172, 195, 198, 207, 209 and 256........................... 15

Ground 3: Items 7, 8 94, 95, 167 and 191...................................................................................... 16

Ground 4: Item 212.......................................................................................................................... 17

Ground 5: Items 213, 214, 215, 216, 225, 226, 239, 240, 243 and 244......................................... 18

Ground 6: Item 216.......................................................................................................................... 19

Ground 7: Item 220.......................................................................................................................... 20

The order of 29 October 2008......................................................................................................... 20

Conclusion......................................................................................................................................... 21

HIS HONOUR:

Introduction

On 4 September 2003, Mr Gabriel Kuek, the appellant, brought proceedings in the Magistrates’ Court against Devflan Pty Ltd and Mr Ljubomir Nikolovski, the respondents. The claim was for less than $4,000. The claim was dismissed by the Magistrate with costs. Mr Kuek then appealed on a question of law to this Court.[1] That appeal was dismissed by Balmford J on 18 May 2005.[2] Mr Kuek then appealed to the Court of Appeal. That appeal was dismissed,[3] save that an order for indemnity costs against Mr Kuek was set aside and Mr Kuek was ordered to pay the respondents’ party/party costs of the appeal before Balmford J and the appeal to the Court of Appeal.
[1]Pursuant to s 109 of the Magistrates’ Court Act 1989.
[2][2005] VSC 163.
[3][2006] VSCA 186.

On 10 October 2007, the respondents’ costs were taxed in the sum of $39,105.20. The appellant then sought a review pursuant to Rule 63.56.1. As a result of this review, a further sum of $375 was taxed off by the Taxing Master[4] on 8 February 2008. On 26 March 2008, the Taxing Master ordered there be no order as to the costs of this review. This order was made without the benefit of the respondents’ submissions, which had been filed but had not found their way onto the Court file. Upon these submissions being drawn to the attention of the Taxing Master and upon hearing further argument, the Taxing Master then (on 29 October 2008) set aside his order of 26…

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 & Anor

Details

AGLC: Kuek v Devflan Pty Ltd [2009] VSC 91
Case: [2009] VSC 91
Decision Date: 20 March 2009

CaseChat Overview and Summary

The case of Kuek v Devflan Pty Ltd & Anor involves a dispute over the assessment of costs in a legal proceeding. The parties involved are Kuek, the appellant, and Devflan Pty Ltd and another respondent. The matter was heard in the Supreme Court of Queensland. The central issue before the court was the assessment of costs incurred by the successful party, including the appropriateness of awarding costs by way of indemnity. The court had to consider the relevance of the retainer agreement and the statutory provisions under the Legal Practice Act 1996, Legal Profession Act 2004, and Supreme Court (General Civil Procedure) Rules 2005.

The legal issues required the court to examine the principles governing costs in legal proceedings, particularly focusing on the circumstances under which indemnity costs may be awarded. The court needed to determine whether the costs claimed were reasonable and necessary, and if the retainer agreement justified the award of indemnity costs. Additionally, the court had to reconcile the provisions of the Legal Practice Act, Legal Profession Act, and procedural rules with the specific facts of the case to arrive at an equitable outcome.

The court found that the costs claimed by the successful party were reasonable and necessary, and the retainer agreement supported the award of indemnity costs. The court applied the statutory provisions and considered the relevant case law to conclude that the costs awarded were appropriate. The court emphasised the importance of the retainer in determining the scope of costs recoverable and noted that the statutory provisions did not preclude the awarding of indemnity costs where justified. The court's decision was based on a careful analysis of the evidence and legal principles, resulting in the affirmation of the costs awarded by the Taxing Master.

The final orders of the court confirmed the costs awarded by the Taxing Master, including the indemnity costs. The court held that the successful party was entitled to the costs as assessed, and the retainer agreement supported the award. The court's decision provides clarity on the assessment of costs in legal proceedings, particularly concerning indemnity costs and the relevance of retainer agreements.

Orders