| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9228 of 2004
| GABRIEL KUEK | Appellant |
| v | |
| DEVFLAN PTY LTD and LJUBOMIR NIKOLOVSKI | First Respondent Second Respondent |
---
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 | |
---
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.
---
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.
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…
Continue reading Kuek v Devflan Pty Ltd & Anor
Sign in free to access the full text
- AGLC
- Kuek v Devflan Pty Ltd [2009] VSC 91
- Case
- [2009] VSC 91
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.