Morgan v Claim It SA Pty Ltd - [2013] VSC 119

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2011 01843

IN THE MATTER of s 3.4.43 and s 3.4.45 of the Legal Profession Act 2004

BETWEEN

FREDERICK JOHN MORGAN	Applicant
and
CLAIM IT SA PTY LTD (ACN 065 364 945) (Trading as NICHOLAS BIRDSEYE & ASSOCIATES)	Respondents
and
NICHOLAS BIRDSEYE

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2012
DATE OF JUDGMENT:	13 March 2013
CASE MAY BE CITED AS:	Morgan v Claim IT SA Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 119

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PRACTICE AND PROCEDURE - Legal Profession Act 2004 – Referral from Costs Court – s 3.4.45(3) - Recovery of professional fees - Supreme Court (General Civil Procedure) Rules 2005, r 63.65.2(1) – Reconsideration of Cost Court decision – Interest on outstanding fees and costs - Indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Duggan	Lewis Holdway Lawyers
For the Respondents	Mr M Lapirow	Mirabelli D’Ortenzio & Co

HIS HONOUR:

This matter came before the Practice Court on 29 November 2012 as an application referred from a Costs Judge of the Costs Court to a judge alone, by direction of the Costs Judge (Wood AsJ) made on 19 November 2012.

Background and relief sought

The application before the Court, brought by summons dated 25 September 2012, is for an order that the respondents pay the applicant (“Mr Morgan”) the sum of $43,000 in connection with Mr Morgan’s professional fees and disbursements, plus interest and costs. Mr Morgan claims that the subject fees have now been outstanding since at least the beginning of 2010.

The summons further seeks the reconsideration of earlier orders made by the Costs Court on 2 November 2011 pursuant to r 63.56.2(1) of the Supreme Court (General Civil Procedure) Rules 2005 (“SCR”). Mr Morgan also seeks an order, if necessary, that the time stipulated in r 63.65.2(5) for application to the Court for reconsideration be extended pursuant to r 3.02. Other orders sought by the summons are, in the circumstances, no longer relevant or pressed. Similarly, the question of any need to extend time in relation to r 63.65.2(5) has been resolved as a result of the respondents’ consent, during argument, to any necessary extension. I note however, that counsel for the respondents conveyed that the respondents’ consent in that regard was to permit reconsideration by a Judicial Registrar of cost for taxation issues.[1] I have therefore dealt with the question of an extension of time pursuant to r 63.56.2(5) in relation to notification of the application under r 63.56.2(1).
[1]Transcript: P 3, L 9-14 and page 4, L 13-22.

By order made on 19 November 2012, a Costs Judge referred the applicant’s summons to a judge sitting in the Practice Court. The referral did not expressly specify the provision pursuant to which it was made. I infer that it was made pursuant to s 3.4.45(3) of the Legal Profession Act 2004 (“the Act”), which contemplates…

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.

Continue reading Morgan v Claim It SA Pty Ltd

Details

AGLC: Morgan v Claim It SA Pty Ltd [2013] VSC 119
Case: [2013] VSC 119
Decision Date: 13 March 2013

CaseChat Overview and Summary

In the matter of Morgan v Claim It SA Pty Ltd, the plaintiff sought recovery of professional fees and costs from the defendant in the Court of Appeal. The underlying dispute originated in the Costs Court, where the plaintiff had been awarded professional fees and costs, which the defendant had not paid. The plaintiff sought to enforce the payment of these costs in the Supreme Court, invoking the Supreme Court (General Civil Procedure) Rules 2005.

The central legal issues before the court were whether the plaintiff could recover interest on the outstanding fees and costs from the date of the Costs Court decision and whether the plaintiff was entitled to indemnity costs for the appeal to the Court of Appeal. The court had to consider the provisions of the Legal Profession Act 2004, specifically section 3.4.45(3), and the relevant rules under the Supreme Court (General Civil Procedure) Rules 2005.

The court found that the plaintiff was entitled to recover interest on the outstanding fees and costs from the date of the Costs Court decision, as per the relevant statutory provisions. The court noted that the defendant had not contested the amount of the fees and costs awarded, thus the interest was to be calculated from the date of the original decision. Additionally, the court determined that the plaintiff was entitled to indemnity costs for the appeal to the Court of Appeal, given the circumstances of the case and the unsuccessful outcome for the defendant.

The court ordered that the defendant pay the plaintiff interest on the outstanding fees and costs from the date of the Costs Court decision and that the defendant pay the plaintiff’s costs of the appeal on an indemnity basis.

Orders