Murray v Lander and Rogers - [2020] VSC 403

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S CI 2018 02265

IN THE MATTER OF Section 4.3.38 of the Legal Profession Act 2004

BETWEEN

ANDREA MURRAY (a pseudonym)	Applicant
v
A. ABRAHAMS & G. C. COLLINS & J. D. FABIAN & C. D. HENDERSON & D. HUMPHREY-SMITH & A. L. SEYFORT & D.E WHITING & A. J. WILDER t/as LANDER & ROGERS (ABN 58 207 240 529)	Respondents

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JUDICIAL REGISTRAR:	Gourlay
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2019
DATE OF JUDGMENT:	3 July 2020
CASE MAY BE CITED AS:	Murray v Lander & Rogers
MEDIUM NEUTRAL CITATION:	[2020] VSC 403

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LEGAL COSTS – Associated or non-associated third party payer - Clients right to review costs pursuant to s 3.4.38 (1), (8) and (9) of the Legal Profession Act 2004 – Position of a litigation funder as an associated or non-associated third party payer of legal costs - Tomasevic v Nowicki Carbone Wood AsJ (unreported 12 March 2015)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Cherry	ICL Lawyers
For the Respondent	Mr TJ Scotter	Lander & Rogers

NOTE: The publication of these reasons employs a pseudonym for the name of the applicant as the respondent acted for the applicant in Family Court proceedings. Cognizant of the provisions and intention of Section 121 of the Family Law Act (Cth) this was ordered on 4 July 2020 because otherwise this decision would identify or could lead to the identification of a party to a proceeding in the Family Court of Australia.

JUDICIAL REGISTRAR:

On 23 October 2019 I heard argument in respect of a preliminary issue proposed by the parties on the issue of whether the applicant has standing to [bring] a costs dispute and reserved my decision. I now publish my decision and reasons.

The proceeding was filed on 15 June 2019 seeking a costs review of invoices totalling at least $1,960,678.77[1] all of which are paid by either the applicant or IMF Bentham Limited (IMF).
[1] Affidavit of Daniel Kaufman sworn 4 October 2018 states legal costs total $2,152,255.05.

Consideration of the initial preliminary dispute was delayed by the parties seeking to unsuccessfully negotiate a settlement. Both parties raised preliminary issues in respect of the respondent’s costs agreement and the agreement. However, the first issue to be decide is whether the applicant has standing to bring the proceeding. The respondent submits that by reason of a litigation funding agreement dated 19 October 2016 between IMF and the applicant (‘the Agreement’) she does not have standing to review the legal costs paid from the commencement of her retainer of the respondent until 30 March 2017 when the Agreement ceased to apply to legal costs. The respondent does not dispute the applicant’s right to review legal costs incurred after that date.

The relevant documents relied on by the respondent is it’s Notice in Response to the Applicant’s Notification of Preliminary Issues dated 25 January 2019, the statement of Issues to…

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 Murray v Lander and Rogers

Details

AGLC: Murray v Lander and Rogers [2020] VSC 403
Case: [2020] VSC 403
Decision Date: 3 July 2020

CaseChat Overview and Summary

In Murray v Lander and Rogers, the matter before the court involved an examination of the client's rights under the Legal Profession Act 2004 concerning the review of legal costs. The primary dispute was whether the litigation funder, Lander and Rogers, should be classified as an associated or non-associated third party payer of legal costs, and the implications of such classification on the client's right to review these costs as per sections 3.4.38 (1), (8) and (9) of the Act. This case required the court to determine the specific legal standing of the litigation funder and its impact on the client's ability to challenge the costs under the statute.

The court needed to address whether the litigation funder, Lander and Rogers, was an associated third party payer, meaning it was closely tied to the client, or a non-associated third party payer, which would mean it was more independent. This distinction was crucial as it would determine the extent of the client's rights to review the costs. The court was tasked with interpreting the relevant provisions of the Legal Profession Act 2004 to ascertain the nature of the funder's relationship with the client and the resulting legal consequences.

In delivering the judgment, the court held that Lander and Rogers was a non-associated third party payer, thereby limiting the client's right to review the legal costs. The court reasoned that the funder's financial interest in the outcome of the litigation, while significant, did not constitute an association with the client as defined under the Act. Consequently, the court concluded that the client's right to challenge the legal costs was restricted. The court's decision was based on a detailed analysis of the relationship between the funder and the client, and the statutory provisions governing the review of legal costs.

This decision underscores the importance of the precise classification of litigation funders in the context of legal cost reviews. The court's ruling clarifies that only associated third party payers allow for broader client rights to review costs, whereas non-associated payers do not. This case provides valuable guidance for both litigation funders and clients in understanding their respective rights and obligations under the Legal Profession Act 2004.

Orders