LAURENCE ANTHONY MORGAN	Plaintiff
v
PETER BARRY MORGAN (who is sued in his capacity as executor of the estate of MARGARET THERESE MORGAN, deceased)	Defendant
- and -
MIRKA CARMELLI and MCK LEGAL	Non-parties

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 March 2023
CASE MAY BE CITED AS:	Re Morgan
MEDIUM NEUTRAL CITATION:	[2023] VSC 133

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COSTS — LEGAL PRACTITIONERS — Overarching obligations under Civil Procedure Act 2010 (Vic) ss 18, 19, 20, 22, 23 and 24 — Whether breached by solicitor for plaintiff —Whether costs order should be made against solicitor for the plaintiff under Civil Procedure Act 2010 (Vic) s 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	MCK Legal until 3 February 2022
For the Defendant	Clarke & Barwood Lawyers
For the Non-parties	MCK Legal

HER HONOUR:

Introduction

Margaret Therese Morgan (‘the deceased’) died intestate on 29 March 2020. Pursuant to the intestacy provisions, the deceased’s father (‘the defendant’) is the sole beneficiary of the estate of the deceased.[1] On 20 January 2021 letters of administration on intestacy were granted to the defendant.
[1]Administration and Probate Act 1958 (Vic), s 70ZH.

Laurence Morgan (‘the plaintiff’) is the deceased’s brother. By originating motion filed 17 June 2021, the plaintiff sought provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Administration and Probate Act’). The plaintiff was represented by MCK Legal. The plaintiff’s solicitor was Mirka Carmelli of MCK Legal.

By orders made 19 November 2021 and an email dated 22 December 2021, the Court reminded the practitioners of their obligations under the Civil Procedure Act 2010 (Vic) (‘the Civil Procedure Act’) and the sanctions under Part 2.4 of that Act and that costs would not necessarily be paid out of the estate.

On 22 December 2021 the defendant’s solicitors informed the Court that they had recently become aware that the plaintiff had died and that the plaintiff’s solicitor was also aware of his death.

On 3 February 2022 MCK Legal filed a notice of ceasing to act for the plaintiff.

At a hearing on 4 February 2022, the Court indicated that notwithstanding the plaintiff’s death and the filing of the notice of ceasing to act for the plaintiff, the costs of the proceeding needed to be determined. The Court also repeated the concerns it had expressed throughout the conduct of the proceeding, relating to:

(a) the affidavits filed in the proceeding containing a substantial amount of irrelevant and inadmissible information;

(b) the cost estimates given in the joint trial document filed 18 November 2021, which estimated costs up to and including the trial as…

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 Re Morgan

Details

AGLC: Re Morgan [2023] VSC 133
Case: [2023] VSC 133
Decision Date: 23 March 2023

CaseChat Overview and Summary

The parties involved in the case of Re Morgan were the plaintiff and the defendant, with the plaintiff represented by a solicitor. The dispute centred around the obligation of the solicitor to comply with overarching obligations under sections 18, 19, 20, 22, 23 and 24 of the Civil Procedure Act 2010 (Vic). The court was required to determine whether the solicitor had breached these obligations and, if so, whether an appropriate costs order should be made against the solicitor under section 29 of the same Act.

The legal issues before the court involved whether the plaintiff's solicitor had indeed breached the overarching obligations, and if so, whether such a breach warranted a costs order against the solicitor. The court needed to carefully consider the solicitor's actions in the context of the statutory provisions and the overarching obligations they were meant to fulfil. The court also had to weigh the implications of any potential breach on the fairness and efficiency of the proceedings.

The court found that the solicitor had indeed breached the overarching obligations as outlined in sections 18, 19, 20, 22, 23 and 24 of the Civil Procedure Act 2010 (Vic). It was determined that the breaches were serious enough to warrant a costs order against the solicitor for the plaintiff under section 29 of the Act. The court emphasised the importance of adhering to these obligations to ensure the proper administration of justice and to avoid unnecessary costs and delays. Consequently, the court made an order for costs against the plaintiff's solicitor.

Orders