Lujerdean v G C Corrigan and Co Pty Ltd - [2014] VSC 682

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S CI 2013 00779

LIVIU LUJERDEAN	Plaintiff
v
G C CORRIGAN & CO PTY LTD	Defendant

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JUDGE:	Associate Justice Wood
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2014
DATE OF JUDGMENT:	4 April 2014
CASE MAY BE CITED AS:	Lujerdean v G C Corrigan & Co Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 682

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Wood	Patrick Robinson & Associates
For the Respondent	Mr M La Pirow	Minter Ellison

HIS HONOUR:

Background

The Applicant has an entitlement to costs arising from an order of the County Court made on 17 September 2007. The proceedings related to an application for leave to issue proceedings for common law damages for both pain and suffering and pecuniary loss pursuant to s 134AB of the Accident Compensation Act 2004.

The bill of costs filed with the Summons claimed $33,800.09. Items 1 to 184 in the bill relate to scale items claimable for work performed in 2006 and 2007. Items 185 to 203 relate to work performed in 2013 in relation to the taxation of costs only. With the exception of item 195 they are items drawn on the basis of scale. Item 195 is the filing fee for the summons and the only disbursement within this range of item numbers.

In relation to all the scale items from 185 onwards the Applicant claimed an additional 10% added to the scale rate to reflect the addition of GST.

The initial taxation occurred before a Costs Registrar who ruled in part that:

There is no taxable supply between parties in a legal proceeding such as this and it is not proper for the claimant to add GST to scale items or for the respondent to be responsible for its payment.
Although solicitors are required to charge their clients GST and there is clearly a taxable supply between them does not effect claims for costs being taxed pursuant to an order of a Court.

The result was that the GST component claimed in addition to the allowed items was disallowed. The Applicant sought a review of that ruling and a Judicial Registrar affirmed the decision of the Costs Registrar on 17 December 2013. The Applicant now seeks a review of the decision of the Judicial Registrar. It is uncontroversial that a clear error needs to be demonstrated by the Applicant in order to succeed. The pertinent sections of that decision of the Judicial Registrar are reproduced below:

14. It is necessary to look at the difference between the costs payable by a client as remuneration to his solicitor and those costs payable pursuant to an order for the costs. The second of these payments is considered part of the damages awarded to the successful party to litigation and is intended to be an indemnity or partial indemnity for costs paid to the solicitor for the successful party.
15.A review of various texts on…

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: [2014] VSC 682
Decision Date: 4 April 2014

CaseChat Overview and Summary

The plaintiff, Liviu Lujerdean, sought a review of a decision made by a Judicial Registrar in relation to a bill of costs submitted for taxation. The plaintiff had obtained an entitlement to costs from an order of the County Court made in 2007. The plaintiff sought to recover costs incurred in 2006 and 2007. The plaintiff also sought to recover costs incurred in 2013 in relation to the taxation of costs only. The plaintiff claimed an additional 10% added to the scale rate to reflect the addition of GST for the costs incurred in 2013. The Registrar ruled that the addition of GST was not allowable. The plaintiff sought a review of that ruling and the Judicial Registrar affirmed the decision of the Registrar. The plaintiff now seeks a review of the decision of the Judicial Registrar. The plaintiff contended that the Judicial Registrar erred in his interpretation of the relevant provisions of the County Court Civil Procedure Rules 2008, the definition of legal costs in the Legal Profession Act 2004, and the authorities referred to by the Judicial Registrar. The plaintiff also contended that the Judicial Registrar erred in not allowing the addition of GST to the scale items claimed in the bill of costs. The court found that the Judicial Registrar's interpretation and application of the principles were correct. The cases that had been distinguished had been approached on a sound basis. The Notice of Review was dismissed and the decision of the Judicial Registrar was confirmed. The parties were granted liberty to apply in the event that the issue of costs could not be agreed.

Orders