| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2009 06947
IN THE MATTER of an application by the Legal Services Board for the appointment of a receiver for the law practice of David Forster, an Australian legal practitioner trading under the name Hollows Lawyers, pursuant to s 5.5.1 of the Legal Profession Act 2004
B E T W E E N
| LEGAL SERVICES BOARD (ABN 82 518 945 610) | Plaintiff |
| v | |
| DAVID FORSTER | Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7, 8 and 23 June 2011 |
DATE OF RULING: | 15 September 2011 |
CASE MAY BE CITED AS: | Legal Services Board v Forster |
MEDIA NEUTRAL CITATION: | [2011] VSC 456 |
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LEGAL PRACTITIONERS – Receiver appointed – Supervision by the Court of the fees, costs and expenses of the receivers – Application by the law practice to have fees, costs and expenses of the receiver reviewed – ss 5.5.1, 5.6.5 and 5.6.7, Legal Profession Act 2004 (Vic) – r 39.07, Supreme Court (General Civil Procedure) Rules 2005 – Section 132, Conveyancers Act 2006 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K P Hanscombe SC with Mr S R Senathirajah | Corrs Chambers Westgarth |
| For the Defendant | Mr A W Sandbach with Mr J K Arthur | Pinto Law |
| For the Receivers | Mr P D Corbett | Hall & Wilcox |
HER HONOUR:
Introduction
On 12 April 2010, Noel Batrouney and Andrew Lyle, partners of the legal firm Hall & Wilcox, were appointed as receivers of the regulated property of the defendant’s law practice pursuant to s 5.5.1 of the Legal Profession Act 2004 (Vic) (the ‘Act’). Messrs Batrouney and Lyle have been the receivers of the regulated property of the law practice since that time, and they have been charged with winding up and terminating its affairs. In addition, they are asked to examine the Melbourne Voyager files held by the law practice and to ensure that all irregularities in relation to trust money, trust property or the affairs of the practice have been fully identified and rectified and, in particular, that all trust deficiencies have been properly restored.
By amended summons filed on 12 April 2011, Mr Forster sought a variety of orders relating to the conduct of the receivership and, in particular, the fees, costs and expenses of the receivers. Mr Forster sought, by a variety of means, to have the receivers’ fees, costs and expenses taxed in the Costs Court under Division 7 of Part 3.4 of the Act, which provides for the review of legal costs by the Costs Court.
During the course of the hearing of the applications in the summons, Mr Forster sought leave to further amend the summons to add paragraph 9A, by which he seeks a direction that the receivers submit accounts on a monthly basis and a full account of their work to date pursuant to r 39.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’).
On 23 June 2010, the…
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- Case
- [2011] VSC 456
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the fees, costs, and expenses claimed by the receiver were reasonable and appropriate, and whether the court had the power to review and determine those fees, costs, and expenses. The court found that it did have the power to review the receiver's fees, costs, and expenses under section 132 of the Conveyancers Act 2006 (Vic), and that the fees, costs, and expenses claimed by the receiver were reasonable and appropriate. The court noted that the receiver had acted diligently and efficiently in managing the affairs of the law practice, and that the fees, costs, and expenses claimed were in line with industry standards.
The court's reasoning was based on a thorough examination of the evidence presented by both parties, as well as relevant legislation and case law. The court found that the receiver had acted in accordance with their duties and responsibilities, and that the fees, costs, and expenses claimed were necessary and reasonable. The court also noted that the law practice had not provided any evidence to suggest that the receiver's fees, costs, and expenses were unreasonable or inappropriate. As a result, the court dismissed the application by the law practice to have the receiver's fees, costs, and expenses reviewed.
The final orders of the court were that the application by the law practice to have the receiver's fees, costs, and expenses reviewed be dismissed, and that the receiver be allowed to retain the fees, costs, and expenses claimed. The court also ordered that the law practice pay the receiver's costs of the application, to be taxed on an indemnity basis.
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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