Lennon Mazzeo v Karam - [2015] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 09926

AKRAM KARAM	Plaintiff
v
PALMONE SHOES PTY LTD	Defendant

AND

LENNON MAZZEO	Applicant
v
AKRAM KARAM, PALMONE SHOES PTY LTD AND ALOE & CO PTY LTD	Respondents

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2015
DATE OF JUDGMENT:	11August 2015
DATE OF WRITTEN REASONS:	20 August 2015
CASE MAY BE CITED AS:	Lennon Mazzeo v Karam and ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 433

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FUNDS IN COURT – application for payment out to satisfy solicitor’s liens – potential further claim – potential change to amount of taxed costs - further adjournment refused on the giving of solicitors’ undertakings to repay if so required by the Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/First Respondent	Mr P Donnellan, solicitor, appeared until excused. The plaintiff appeared in person after counsel was excused.	PRD Legal
For the Defendant/Second Respondent	No appearance
For the Applicant (Lennon Mazzeo)	Mr S McCredie	Lennon Mazzeo
For the Third Respondent (Aloe & Co Pty Ltd)	Mr J Aloe, solicitor	Aloe & Co
For CTT Legal Management Pty Ltd, an interested party by leave	Ms P Toop, solicitor	CTT Legal Management

TABLE OF CONTENTS

Background to the application........................................................................................................ 1

Appeals................................................................................................................................................. 4

Taxation of costs................................................................................................................................. 6

Applications for adjournment......................................................................................................... 6

Applications by CTT Legal Management and Mr Karam (through his solicitors)............. 7
Application for adjournment by Mr Karam personally.......................................................... 9

Orders for payment out................................................................................................................... 11

HER HONOUR:

The reasons that follow are the revised form of reasons I gave orally at the conclusion of the hearing when I indicated the orders that I would make. In these revised reasons I have substantially elaborated the background facts, and in so doing have corrected some matters. I have also corrected my oral account of what occurred in relation to the adjournment applications to better accord with what transpired, and added to a small extent to my reasons for refusing adjournment. I have not, however, departed, from the substance of my oral reasons for refusing adjournment and pronouncing the orders that I would make.

Background to the application

Listed before me today is a summons filed by Lennon Mazzeo Lawyers (‘Lennon Mazzeo’) on 20 May 2015 which seeks payment out of the sum of $106,123.00 from funds held in Court pursuant to the orders of Justice T. Forrest made 23 February 2010. The payment is to meet the taxed costs of Lennon Mazzeo who acted for the plaintiff, Mr Karam, against his employer Palmone Shoes Pty Ltd, the defendant, in two work injury claims heard by Justice Forrest.

In one of those claims, in proceeding S CI 2009 09226 (‘the asthma claim’), Mr Karam was successful. That is the proceeding in which the current summons is brought. In the other claim, brought by proceeding S CI 2009 09113 (‘the cancer claim’), Mr Karam was not successful. Judgment was entered for Mr Karam in S CI 2009 09226 and for 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.

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Details

Case: [2015] VSC 433
Decision Date: 11 August 2015

CaseChat Overview and Summary

The matter between Lennon Mazzeo and Karam involved an application for the payment out of funds held by the court to satisfy certain solicitor’s liens. This application arose due to the possibility of a further claim being made by the respondent, which could potentially alter the amount of taxed costs. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the applicant, Lennon Mazzeo, was entitled to have the funds paid out to satisfy the solicitor’s liens, given the uncertainty caused by the potential further claim and its impact on the taxed costs.

The court considered the nature of the solicitor’s liens and the procedural context in which the application was made. It was noted that the liens were in place to secure unpaid costs, but the presence of a potential further claim introduced an element of uncertainty. The court balanced the applicant’s need for certainty and the respondent’s risk of being left without recourse if the further claim was made and resulted in a change to the taxed costs. The court also examined the solicitors’ undertakings to repay the funds if so required by the court. Ultimately, the court was persuaded that the potential for a change in the taxed costs warranted a cautious approach, and the application for payment out was refused.

The court’s reasoning hinged on the potential for the taxed costs to change and the risk to the respondent if the funds were paid out. It concluded that the solicitors’ undertakings provided a sufficient safeguard, and the application was refused without ordering payment out of the funds. This decision ensures that the respondent’s rights are preserved, and any future determination of the taxed costs can be made with full regard to all relevant claims.

Orders