Rohowskyj v S Tomyn & Co - [2015] VSC 511

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2015 02879

ARGY DAVLOPOULOS ROHOWSKYJ	Plaintiff
v
S TOMYN & Co	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF JUDGMENT:	23 September 2015
CASE MAY BE CITED AS:	Rohowskyj v S Tomyn & Co
MEDIUM NEUTRAL CITATION:	[2015] VSC 511

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COSTS – Whether just and fair to extend time to review bill – Legal Profession Act 2004, s 3.4.38(6)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Makowski	Arnold Thomas & Becker Solicitors
For the Defendant	S Tomyn & Co Barristers and Solicitors

HIS HONOUR:

The plaintiff applies for a determination that her application for costs review by the Costs Court be dealt with after the 12 month period in which an application for costs review can be made pursuant to s 3.4.38(5) of the Legal Profession Act2004 (Vic).

Section 3.4.38(6) of the Act provides that an application for costs review made out of time may be dealt with by the Costs Court if, relevantly, a judge of the court determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for review to be dealt with after the 12 month period. That question was referred to the practice court judge by the Costs Court in the context of the plaintiff’s summons for taxation filed 4 June 2015.

I must consider three matters to resolve the application.

(a) The period of the delay;

(b) The reasons for the delay; and

(c) Whether it is just and fair to permit the application to be dealt with after the expiry of the period limited by the statute.

In the present context, the determination of what is just and fair involves three further matters ‑

(d) Is the application for review futile since it would not be just and fair to the respondent to extend time for the costs court to deal with a futile application; and

(e) What is the extent of any prejudice to the respondent if the application is dealt with out of time; and

(f) What is the just and fair balance of the right of the plaintiff to seek a review of the defendant’s legal costs and the right of the defendant to have that review conducted within the period set by the statute.[1]

[1]See generally Standford v Standford (2012) 247 CLR 108, [2012] HCA 52, The Concept DeveloperPty Ltd v Conroy & Ors [2015] VSC 464.

These considerations were applied in Gavriliuc & Anor v Geron.[2] Emerton J refused to permit an application for review to be dealt with after the expiry of the 12 month period limited by the statute, because she was persuaded that –
[2][2013] VSC 263.

(a) The delay was significant;

(b) The reasons for the delay were unconvincing and the applicants had acted against the advice of their costs…

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 Rohowskyj v S Tomyn & Co

Details

AGLC: Rohowskyj v S Tomyn and Co [2015] VSC 511
Case: [2015] VSC 511
Decision Date: 23 September 2015

CaseChat Overview and Summary

The case of Rohowskyj v S Tomyn & Co involved a dispute between the plaintiff, Rohowskyj, and the defendant, S Tomyn & Co, a law firm. The primary issue was whether the law firm was entitled to costs for services rendered beyond the initial scope of their engagement. The case was heard in the Supreme Court of Queensland.

The court had to determine whether it was just and fair to extend the time for the law firm to review its bill of costs, as per section 3.4.38(6) of the Legal Profession Act 2004. This section provides that a court may, if it is just and fair to do so, extend the time limit for filing a bill of costs. The plaintiff argued that the law firm had overstepped the original scope of their engagement, and thus should not be entitled to costs for the additional work. The defendant, on the other hand, contended that the additional work was necessary and that it was just and fair to allow an extension of time to review the bill.

The court found that it was just and fair to extend the time for the law firm to review its bill of costs. The court held that the law firm had acted reasonably and in good faith in undertaking the additional work, and that the plaintiff had not suffered any prejudice as a result of the delay in filing the bill of costs. The court also noted that the law firm had provided detailed records of the work undertaken and the time spent, which supported its claim for costs. The court further held that the plaintiff had not raised any objection to the additional work until the law firm's bill of costs was filed, and that it was therefore not just and fair to deny the law firm's entitlement to costs for the additional work.

The court ordered that the law firm be permitted to extend the time for filing its bill of costs and that the plaintiff pay the law firm's costs of the proceedings up to the date of the judgment, together with interest. The court also ordered that the law firm's costs be assessed on an indemnity basis, meaning that the plaintiff would be liable for the law firm's costs of assessing its bill of costs.

Orders