Maisano v Bodycorp Pty Ltd (No 2) - [2016] VSC 92

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S CI 2014 1914

ANUNIZIATO ENZO MAISANO (also known as Michael Maisano and Michael Mason)	Applicant
v
BODY CORP REPAIRERS PTY LTD (ACN 068 589 408)	First Respondent
OAKLEY THOMPSON & CO PTY LTD (ACN 092 053 239)	Second Respondent

---

JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2016
DATE OF JUDGMENT:	11 March 2016
CASE MAY BE CITED AS:	Maisano v Bodycorp Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 92

---
DECISION AND REASONS ON REVIEW

---

APPLICATION TO REVIEW DECISION OF JUDICIAL REGISTRAR IN PARTY PARTY TAXATION – Refusal of adjournment – Standing of former solicitor to prosecute taxation of former client’s party party entitlement to costs where equitable right over costs judgment.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	Mr J Levine	Templeton Fox Rothchild
For the Second Respondent	Mr S Senathirajah	Oakley Thompson & Co

HIS HONOUR:

On 3 March 2016 I heard the parties and reserved my decision in this proceeding (‘current proceedings’). I now publish my decision and reasons.

There are two separate matters for consideration and determination, namely two applications for reconsideration/review initiated by the applicant and the first respondent respectively against orders made by a Judicial Registrar in a taxation of costs completed on 11 November 2015 in the current proceedings.

The matter has a long and complicated history. In 2005 the first respondent brought proceedings against the applicant and others (‘substantive proceedings’). The substantive proceedings were ultimately dismissed[1] with the applicant obtaining costs orders in his favour against the first respondent arising from a number of costs orders.[2] Oakley Thompson & Co Pty Ltd (‘the second respondent’) acted for the applicant in the substantive proceedings and they filed a Summons for Taxation on behalf of the applicant in the current proceedings on 23 April 2014 to recover legal costs on the applicant’s behalf.
[1]Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472.
[2]Daly AsJ (19 April & 15 November 2012) and Elliot J (24 April, 31 July & 4 September 2013).

The original bill of costs claimed $286,384.36. An amended bill was filed on 9 May 2014 claiming $300,500.88. The first respondent was represented by Fulton Legal at that point and a comprehensive Notice of Objection to the amended bill was filed on 25 July 2014.

The taxation proper proceeded on 5 and 6 August 2014[3] before Judicial Registrar Gourlay. Further hearings were conducted on 25 August 2014 and 31 October 2014 but they did not advance the taxation proper. Procedural orders were made in relation to affidavits and the first respondent’s strike out application.
[3]An interim sum of $70,000 was quantified on that day.

There are two judgments of significance by Elliot J which were the subject of argument in the current proceedings before me. The first judgment in time was in a separate proceeding initiated by the second respondent (as plaintiff)…

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.

Keep reading for free

Create a free CaseChat account to read Maisano v Bodycorp Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSC 92
Decision Date: 11 March 2016

CaseChat Overview and Summary

The case involves an application by Maisano to review a decision made by a Judicial Registrar concerning the taxation of costs in a party-party matter. The case was between Maisano and Bodycorp Pty Ltd, and the dispute centred around the refusal of an adjournment and the standing of a former solicitor to prosecute the taxation of costs on behalf of a former client. The former solicitor claimed an equitable right over the costs judgment. The matter was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the former solicitor had standing to prosecute the taxation of costs on behalf of the former client and whether the refusal of an adjournment was appropriate. The court needed to determine if the former solicitor's equitable right over the costs judgment was sufficient to establish standing and whether the reasons provided for the refusal of the adjournment were valid. Additionally, the court had to consider the implications of the former solicitor's conduct in relation to the taxation of costs.

The court found that the former solicitor did not have standing to prosecute the taxation of costs on behalf of the former client, as the equitable right claimed did not confer the necessary legal authority. The court held that the former solicitor's claim to an equitable interest in the costs judgment did not equate to standing to act on behalf of the former client. Furthermore, the court found that the refusal of the adjournment was justified, given the circumstances and the reasons provided by the Judicial Registrar. The court concluded that the former solicitor's actions in delaying the taxation process were inappropriate and warranted the refusal of the adjournment.

The final orders of the court were that the application to review the decision of the Judicial Registrar was dismissed, and the former solicitor was not granted standing to prosecute the taxation of costs on behalf of the former client. The refusal of the adjournment was upheld, and the former solicitor was ordered to pay the costs of the application.

Orders