Marshalls & Dent & Wilmoth v Tandos - [2024] VSC 44

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2023 04805

MARSHALLS & DENT & WILMOTH (A FIRM)	Applicant
v
GEORGE TANDOS	First Respondent
and
ABBEYVALE PTY LTD ACN 005 554 834 (ATF THE FIRST TANDOS FAMILY TRUST)	Second Respondent

---

JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2024
DATE OF JUDGMENT:	15 February 2024
CASE MAY BE CITED AS:	Marshalls & Dent & Wilmoth v Tandos
MEDIUM NEUTRAL CITATION:	[2024] VSC 44

---

LEGAL COSTS — Application for assessment of costs — Application made out of time — Standing of the law firm to bring the application — Costs Court a ‘costs assessor’ for the purposes of the application — Just and fair for the application for assessment to be dealt with — Application granted — Legal Profession Uniform Law s 198 — Rohowskj v Tomyn & Co [2015] VSC 511, Eventus Ltd v Richens Pty [2021] VSC 370 and Peter Szabo Family Law Pty Ltd v Young [2023] VSC 756 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S V Kipen	Marshalls & Dent & Wilmoth Lawyers
For the Respondents	Mr S Bunce	A Agrotis & Associates

HER HONOUR:

INTRODUCTION

The applicant is a law firm that acted for the respondents between November 2020 and October 2021 in relation to two separate matters in the County Court.

Invoices were rendered by the applicant between 22 December 2020 and 25 October 2021 amounting to $56,378.03,[1] of which $34,105.40 has been paid. The outstanding amount claimed is $22,985. The said outstanding amount plus interest was claimed in a proceeding issued in Magistrates’ Court proceedings filed on 14 April 2022.
[1]Affidavit of Alex Di Blasi (28 November 2023), Exhibit ADB-1/21-71 (‘Di Blasi Affidavit’).

Orders were made in the Magistrates’ Court proceeding on 16 August 2023 staying the applicant’s claim pursuant to s 178(1) of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Uniform Law’), reserving costs and granting liberty to apply.[2] These orders were made as a result of the Magistrates’ Court finding that the applicant’s costs agreement and disclosure statement was void and thus could not be relied upon.
[2]Ibid, Exhibit ADB-1/108-109.

By summons dated 6 October 2023, the applicant applied for an assessment of its legal costs pursuant to s 198 of the Uniform Law.

On 8 November 2023, a Judicial Registrar referred the application to the Practice Court pursuant to s 198(4) of the Uniform Law for determination as to whether it is ‘just and fair’ for the application to be dealt with more than 12 months after the final bill.

The question for determination is whether it is just and fair for the application to be dealt with after the expiry of the 12‑month period set out in s 198(4) of the Uniform Law.

The applicants submit that it is ‘just and fair’ to make the application sought and rely on the affidavits of Alex Di Blasi sworn on 28 November 2023…

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 Marshalls & Dent & Wilmoth v Tandos 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: [2024] VSC 44
Decision Date: 15 February 2024

CaseChat Overview and Summary

The matter before the Court involved an application by Marshalls & Dent & Wilmoth for an assessment of legal costs against Tandos. The case was heard in the Supreme Court of Victoria. The primary issue for the Court was whether the application for assessment of costs was made out of time and whether the law firm had standing to bring the application. Additionally, the Court had to determine whether it was just and fair for the application for assessment to proceed.

The Court found that the application for assessment was indeed made out of time, however, it considered the circumstances of the case and the standing of the law firm. The Court recognised that it had the authority to act as a costs assessor under the Legal Profession Uniform Law. The Court examined precedents such as Rohowsky v Tomyn & Co [2015] VSC 511, Eventus Ltd v Richens Pty [2021] VSC 370, and Peter Szabo Family Law Pty Ltd v Young [2023] VSC 756 to guide its decision. Based on these cases and the specific circumstances of this case, the Court concluded that it was just and fair for the application for assessment to be dealt with.

Given the Court’s findings, the application for assessment was granted. The Court's decision was based on the unique facts and the law firm's standing, which allowed the application to proceed despite the procedural delay. The Court's ruling was consistent with the principles established in the referenced cases, ensuring that justice was served in this matter.

The final orders of the Court included the granting of the application for assessment of costs, allowing Marshalls & Dent & Wilmoth to proceed with their claim for costs against Tandos. The Court’s decision highlighted the importance of considering the specific circumstances of each case when determining the just and fair treatment of applications for costs.

Orders