Nida v BKA Practice Co Pty Ltd (No 3)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02232

ROONA FAZAL NIDA	Plaintiff
v
BKA PRACTICE CO PTY LTD	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 December 2020
CASE MAY BE CITED AS:	Nida v BKA Practice Co Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 856

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COSTS – Unsuccessful application for extension of time to seek judicial review of Magistrates’ Court orders for payment of debt and costs to solicitor – Appeal from Associate Justice’s refusal of extension of time – Appeal dismissed – Solicitor seeking indemnity costs of appeal – Solicitor an incorporated practice – Whether indemnity costs should be awarded Whether decision in Bell Lawyers Pty Ltd v Pentelow applies to application for indemnity costs – Solicitor only entitled to recover counsel’s fees and disbursements incurred.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Nida	NOH Legal
For the First Defendant	Mr J Searle	Belleli King & Associates

HIS HONOUR:

1. On 20 November 2020 I delivered judgment in this proceeding dismissing Ms Nida’s appeal from a decision of an Associate Justice, who had refused her an extension of time to commence judicial review proceedings of Magistrates’ Court orders ordering her to pay the first defendant, solicitors, a debt and costs.[1] I gave directions for submissions as to costs. Only the first defendant, the solicitors, filed submissions as to costs.

   [1]Nida v BKA Co Pty Ltd (No 2) [2020] VSC 770.

1. The first defendant acknowledged that an incorporated legal firm acting for itself, as it did in the litigation, cannot recover its professional costs of acting for itself. That follows from the High Court’s decision in Bell Lawyers Pty Ltd v Pentelow[2] and subsequent authority, particularly the judgment of Macaulay J in Guneser v Aitken Partners Pty Ltd.[3] But it submitted that that principle only applied to costs sought on a standard basis and not on an indemnity basis, as the costs should be awarded in this case. I see nothing in the authorities nor in logic to support that distinction and I consider that the principle applies equally to claims for indemnity costs as it does to standard costs. Therefore the first defendant is only entitled to recover reasonable fees and disbursements, including counsel’s fees, that it incurred in connection with this proceeding to be taxed by the Costs Court on a standard basis in default of agreement. But for the sake of completeness, I will state my conclusion on whether, if available to be awarded, I would have awarded indemnity costs.

   [2](2019) 372 ALR 555 (‘Bell v Pentelow’). See also United Petroleum Australia Pty Ltd v Herbert SmithFreehills [2020] VSCA 15.

   [3][2020] VSC 329.

1. The first defendant relied upon the following submissions to support its application for indemnity costs. First,…