Owens v Aitken Partners Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COSTS COURT

S ECI 2020 04413

BETWEEN

SUE OWENS	Applicant
and
AITKEN PARTNERS PTY LTD	Respondent

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2021
DATE OF JUDGMENT:	26 March 2021
CASE MAY BE CITED AS:	Owens v Aitken Partners Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 138

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COSTS – Assessment of costs – Request for assessment of legal costs paid by trustee administering applicant’s bankrupt estate – Application brought nine years since payment of final bill – Applicable statutory regime – Relevant period to bring review – Whether to extend time to review bills – Legal Practice Act 1996 (Vic) – Legal Profession Act 2004 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	P Tatti (solicitor)	Aitken Partners

HIS HONOUR:

1. In May 2005 the Federal Magistrates Court of Australia made a sequestration order appointing David Lofthouse as trustee of the applicant’s bankrupt estate (‘the Trustee’).  At about the same time the Trustee engaged the law partnership Aitken Walker and Strachan to act for him in relation to the bankrupt estate.  Aitken Walker and Strachan was acquired by, and became, Aitken Partners Pty Ltd in July 2008.  Aitken Partners Pty Ltd is the respondent in this proceeding.

1. The respondent acted for the Trustee in legal proceedings and commercial transactions until the applicant’s bankruptcy was ultimately annulled in 2010.  In total over $550,000 was paid from the applicant’s bankrupt estate by the Trustee to the respondent for legal costs.

1. In September 2020 the applicant filed a summons for taxation of costs charged by the respondent to her bankrupt estate.  The issues to be determined on the summons are:

(a)   What statutory regime applies to the application?

(b)  Does the applicant have the right to review the respondent’s costs?

(c)   Should the time to apply for review of the respondent’s costs be extended?

Background

1. The applicant was a solicitor for many years until 2006, practising principally in the area of family law.

Applicant’s evidence

1. The applicant made a brief affidavit in support of her application.  She states that in 2005 she attempted to have the sequestration order set aside, but proceedings became protracted when her counsel and solicitor would no longer act for her from July of that year because she had no funds to pay legal fees.  The applicant states she was then without legal representation, and conducted a number of legal proceedings representing herself, including Federal Court proceedings in which she sought to argue that certain assets which had been included in her bankrupt estate were subject to a trust, and complaints she raised in relation to the conduct of the Trustee, in which she failed to obtain orders in her favour.  She states that she managed to find a solicitor, Mr Cull, to act for her in late December 2008. 

1. The applicant states:

As a consequences of the conduct of the Trustee in 2008/2009, I was suffering from cancer…