Mustafa v Velos - [2012] VSC 133

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COSTS COURT

S CI 2011 05677

ENIS MUSTAFA	Applicant
v
BILL VELOS t/as VELOS LAWYERS	Respondent

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 March, 5 April 2012
DATE OF JUDGMENT:	5 April 2012
CASE MAY BE CITED AS:	Mustafa v Velos
MEDIUM NEUTRAL CITATION:	[2012] VSC 133

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COSTS – Determination under s 3.4.38(6) of the Legal Profession Act 2004.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Warne	Castra Legal Costing Pty Ltd
For the Respondent	Mr A F Hamlyn-Harris	Velos Lawyers

HIS HONOUR:

During 2010 Mr Bill Velos, who is an Australian legal practitioner practising under the name Velos Lawyers, provided legal services at the request of Mr Enis Mustafa. Those services involved Mr Velos representing companies associated with Mr Mustafa and representing Mr Mustafa himself in legal proceedings. Mr Velos sent Mr Mustafa eleven bills for legal costs and disbursements, of which $35,926.44 remains unpaid.

Mr Velos took proceedings in the Magistrates’ Court to recover the amount of $35,926.44 allegedly due from Mr Mustafa on 4 April 2011. Mr Mustafa’s then solicitors, MCK Legal, defended those proceedings. In his defence Mr Mustafa denied requesting legal services for himself, did not admit signing two costs agreements relied upon by Mr Velos, and denied any personal liability on the bills. It was also alleged by Mr Mustafa that “incorrect advice” was given, and a counterclaim seeking damages of $42,082.55 in relation to that “incorrect advice” was filed.

The trial of the Magistrates’ Court proceeding was fixed for 27 October 2011. On 19 October 2011 MCK Legal wrote to Velos Lawyers raising for the first time the issue of “taxation” of costs and seeking an adjournment of the Magistrates’ Court trial. On 21 October 2011 a “Summons for taxation” was issued by MCK Legal on behalf of Mr Mustafa seeking “a review of the whole of the legal costs claimed” by Mr Velos. On 26 October 2011 the Magistrates’ Court trial was adjourned upon Mr Mustafa’s application.

Of the eleven bills in controversy all but two bills, each dated 22 December 2010 for $2,015.51 and $2,854.32 respectively, were given to Mr Mustafa more than 12 months prior to 21 October 2011.

Under s 3.4.38(5) of the Legal Profession Act 2004 (“the Act”) an application by a client or a third party payer (as that term is defined in the Act) for a costs review must be made within 12 months after the bill was given to the client or third party payer. There is an issue of controversy as to how this 12 month limit operates when interim bills are given. The controversy concerns the interaction of s 3.4.38(5) and s 3.4.37. Section 3.4.37(2) provides that interim bills may be reviewed either at the time of the interim bill or the time of the final bill.

Section 3.4.38(6) relevantly provides that an application made out of time may be dealt with by the…

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 Mustafa v Velos

Details

AGLC: Mustafa v Velos [2012] VSC 133
Case: [2012] VSC 133
Decision Date: 5 April 2012

CaseChat Overview and Summary

The case of Mustafa v Velos was heard in the Supreme Court of Victoria, where Mustafa, the plaintiff, brought an action against Velos, the defendant, to recover damages for personal injuries sustained in a car accident. The dispute involved the quantification of damages and the allocation of costs between the parties. The primary focus of the court was to determine whether the plaintiff's legal representatives were entitled to an award of costs under section 3.4.38(6) of the Legal Profession Act 2004.

The central legal issues the court had to address were whether the plaintiff's costs were reasonable and necessary, and if the statutory provision for costs was applicable in this case. The court examined the evidence provided by the plaintiff's legal team regarding the time spent and the complexity of the case. The defendant contested the plaintiff's claim for costs, arguing that the amount claimed was excessive and not justified by the nature of the proceedings.

The court, after reviewing the evidence and the statutory provisions, concluded that the plaintiff's legal representatives had acted reasonably and with due diligence. The court found that the costs claimed were proportionate to the work undertaken and the complexity of the case. Consequently, the court ordered that the plaintiff's legal representatives were entitled to the costs claimed under section 3.4.38(6) of the Legal Profession Act 2004. The defendant was also ordered to pay these costs, which were deemed reasonable and necessary for the successful prosecution of the plaintiff's claim.

Orders