Pippett v Liu - [2016] VSC 402

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COSTS COURT

S CI 2015 05114

BRUCE PIPPETT	First Applicant
- and -
JANINE WALD	Second Applicant
v
TING LIU	Respondent

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2016
DATE OF JUDGMENT:	18 July 2016
CASE MAY BE CITED AS:	Pippett and Anor v Liu
MEDIUM NEUTRAL CITATION:	[2016] VSC 402

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PRACTICE AND PROCEDURE – Application to set aside warrant of execution – Warrant issued pursuant to order of the Costs Court on a taxation of costs between solicitor and client and Barrister and client – Order not an order for payment of costs – Warrant issued irregularly – Warrant set aside – Scott v Evia Pty Ltd [2008] VSC 324 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	The First Applicant appeared in person
The Second Applicant appeared in person (pursuant to leave)
For the Respondent	The Respondent appeared in person

HIS HONOUR:

Introduction

By summons filed on 13 July 2016, the respondent (‘Ms Liu’) applies for an order that a warrant of seizure and sale issued by the Court on 16 May 2016 be set aside. The application is supported by an affidavit of Ms Liu affirmed on 4 July 2016 (‘Liu affidavit’).

Mr Pippett appeared and represented himself. Ms Wald of Counsel, who is a party to the proceeding, but not a party to the application before me today, applied for leave to appear, which in the circumstances I granted.

Background

The first applicant (‘Mr Pippett’) is a solicitor who acted for the respondent in family law proceedings. Mr Pippett commenced proceedings in the Magistrates’ Court of Victoria claiming payment of legal costs said to be due to him. By order of the Magistrates’ Court at Melbourne made on 12 May 2015, the Magistrates’ Court proceeding was stayed until further order and each party was given liberty to apply on giving 21 days written notice to the other.[1] Ms Liu obtained that stay on the basis of Mr Pippett’s failure to fulfil his disclosure obligations under the Legal Profession Act 2004 (‘LPA’).[2]
[1]Exhibit TL-1 to the Liu affidavit.
[2]Liu affidavit [4].

Mr Pippett commenced proceedings in the Costs Court by summons filed 30 September 2015 seeking a taxation of the legal costs said to be due to him.[3] After some interlocutory orders were made the taxation took place on 22 February 2016. The result of the taxation was declared by order made on 22 February 2016.[4] The order provided:

1. Janine Wald be added as a second applicant.
2.The applicants’ costs be taxed at $16,046.01, together with the sum of $800 representing the first applicant’s costs of the day on 19 January 2016, making a total of $16,846.01.
3.There be no order as to costs of the proceeding.

[3]Section 3.4.40 of the LPA.

[4]Liu affidavit [6] and Exhibit TL-2 to the Liu affidavit.

The order was authenticated on the day by Associate Justice Wood.

Mr Pippett applied for the issue of…

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 Pippett v Liu

Details

AGLC: Pippett v Liu [2016] VSC 402
Case: [2016] VSC 402
Decision Date: 18 July 2016

CaseChat Overview and Summary

Pippett sought to set aside a warrant of execution issued pursuant to a taxation of costs order in the Costs Court. The warrant was issued following a dispute between the parties over the costs of legal proceedings. The application was heard in the Supreme Court. The central legal issue was whether the warrant of execution was validly issued given that the Costs Court's order was not a final order for payment of costs. The court found that the warrant was irregularly issued as the Costs Court order was interlocutory rather than a final order for payment. This distinction was critical because it meant that the order did not create a liability to pay the taxed costs immediately. The court referenced Scott v Evia Pty Ltd, where similar reasoning was applied to set aside an irregularly issued warrant. Consequently, the warrant of execution was set aside.

The court's reasoning focused on the nature of the Costs Court's order, which was not a definitive order for payment but rather an interlocutory step in the costs assessment process. The irregularity in the issuance of the warrant stemmed from the misinterpretation of this order as a final payment directive. By distinguishing the current case from Scott v Evia Pty Ltd, the court underscored that the Costs Court's order did not impose an immediate obligation to pay the taxed costs, thereby making the warrant of execution an improper means of enforcement. As a result, the application to set aside the warrant was successful, reflecting the court's commitment to ensuring procedural correctness in the enforcement of costs orders.

Orders