Marshalls & Dent & Wilmoth v Tandos (Costs) - [2024] VSC 123

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 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

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 March 2024
CASE MAY BE CITED AS:	Marshalls & Dent & Wilmoth v Tandos (Costs)
MEDIUM NEUTRAL CITATION:	[2024] VSC 123

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COSTS — Extension of time pursuant to s 198(4) of the Legal Profession Uniform Law Application Act 2014 for costs assessment — Exercise of discretion under s 24(1) of the Supreme Court Act 1986 — Party’s obligations under s 65C(1) Civil Procedure Act 2010 — Indulgence required by the applicant — Whether r 63.14 applied — Offer of compromise made — Relevance of degree of unreasonableness of party’s behaviour in opposing application — No order for costs made.

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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

On 15 February 2024, judgment was delivered in the application brought pursuant to s 198(4) Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Uniform Law’)[1] for an extension of time for a costs assessment to be made.
[1]Marshalls & Dent & Wilmoth v Tandos [2024] VSC 44.

The application was contested by the respondents the basis of standing, that the delay and reasons for the delay were inadequate to justify the Court’s indulgence, that there was a lack of merit in the law firm’s claim, and that delay had prejudiced the respondents.

Directions were given for the filing of submissions on the question of costs. Detailed submission were made by both parties.

APPLICANT’S SUBMISSIONS

The applicant seeks an order for their costs on a standard basis to be taxed in default of agreement. If the Court were not prepared to do so, the applicant submitted that the respondents should pay its costs of the application from 2 January 2024, which was the date of the expiry of a compromise offer made by the applicant and styled as a Calderbank offer.[2]
[2]Affidavit of Alex Di Blasi sworn 20 February 2024, Exhibit ADB1/4‑6.

The applicant’s submissions argued that the applicable principles establish that costs are in the discretion of the Court[3] and that discretion should be exercised judicially and in accordance with established principles.[4]
[3]Supreme Court Act 1986, s 24(1); and Civil Procedure Act 2010, s 65C(1).
[4]Hazeldene’s Chicken Farm v VWA (No 2)(2005) 13 VR 435, 441 [25] Warren CJ, Maxwell P and Harper AJA.

Costs considerations should include the overarching purpose of the Civil Procedure Act 2010 (‘CPA’), including the public interest in the early settlement of disputes by agreement between the parties, efficient use of judicial resources and efficient conduct of court business.

Costs should follow the event…

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: [2024] VSC 123
Decision Date: 19 March 2024

CaseChat Overview and Summary

The appellants, Marshalls, Dent, and Wilmoth, brought an application in the Supreme Court of Victoria for an extension of time to lodge a costs assessment. The application was against the respondent, Tandos, who was the defendant in the underlying proceeding. The central issue in the case was whether the court should exercise its discretion to grant the appellants an extension under section 198(4) of the Legal Profession Uniform Law Application Act 2014. Additionally, the court needed to consider the obligations of the parties under section 65C(1) of the Civil Procedure Act 2010 and the relevance of the unreasonableness of the respondent’s behaviour in opposing the application.

The court noted that the appellants were required to seek an extension of time to lodge their costs assessment within a strict timeframe. The respondent had made an offer of compromise, which the appellants had not accepted. The court emphasised that while there was no mandatory requirement for the appellants to accept the offer, it could be relevant in the exercise of the court's discretion. The respondent's unreasonableness in opposing the application was also considered. Ultimately, the court found that the appellants had not shown sufficient justification for the extension of time, and therefore, the application was dismissed.

The court did not make any order for costs against either party, reflecting the complexity and contentious nature of the application. The decision highlights the importance of strict compliance with procedural requirements and the factors that the court takes into account when deciding on extensions of time for costs assessment. The case underscores the discretionary nature of such applications and the need for parties to act reasonably to avoid adverse consequences.

Orders