Vizovitis v Ryan - [2014] ACTSC 243

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Vizovitis v Ryan
Citation:	[2014] ACTSC 243
Hearing Date(s):	7-10 June 2010, 19-22 September 2011, 9-10 November 2011, 14-17 November 2011, 2-4 April 2012, 24 September 2012, 31 October 2012, 29 November 2012, 17-21 December 2012, 7-8 January 2013, 24 April 2013 Final written submissions lodged: 21 May 2013
DecisionDate:	19 September 2014
Before:	Harper M
Decision:	The court declares that the agreements as to costs between the parties dated 23 March 1999 and 10 December 2002 are not binding on the parties. 1. judgment for the plaintiff in the sum of $53,250.00. 2. the defendant pay the plaintiff’s costs. 3. the order as to costs be stayed for 14 days.
Category:	Principal Judgment
Catchwords:	COSTS – costs between solicitor and client – agreement as to costs – whether fair and reasonable – Legal Practitioners Act 1970 (since repealed) – onus on solicitor to satisfy court that agreement fair and reasonable – whether hourly rate excessive – whether benefit to solicitor and disadvantage to client established – agreements set aside – measure of client’s loss
Legislation Cited:	Legal Practitioners Act 1970 (ACT) Legal Profession Act 2006 (ACT)
Cases Cited:	Passey v Bandarage [2002] ACTSC 105 Weiss v Barker Gosling (1993) 16 FamLR 728 Budziszewski (1981) FLC 91-038 Hall v Barrett (1982) FLC 91-216 Schiliro v Gadens Ridgeway (1995) 19 FamLR 196
Parties:	Georgia Vizovitis (Plaintiff) Eunice Catherine Mary Ryan (Defendant)
Representation:	Counsel Mr SR Hausfeld (Plaintiff) In person (7 June 2010-22 September 2011) (Defendant) Mr BMJ Toomey QC (9 November 2011 - 4 April 2012) Mr MJ Neil QC (24 September – 31 October 2012) Mr B O’Donnell (17 December 2012 – 8 January 2013) In person (24 April 2013
Solicitors Dibbs Barker (Plaintiff) Ryans Barristers and Solicitors (Defendant)
File Number(s):	SC 694 of 2004

Harper M:

The defendant is the sole principal of a firm of solicitors practising at the Tuggeranong Town Centre. She acted for the plaintiff in two actions for damages for personal injury in this court, each of which arose out of a motor vehicle collision. The collisions occurred on 2 April 1994 and on 3 April 1996. Both collisions happened in Northbourne Avenue, Braddon. In each collision the plaintiff was the driver of a car which was struck from behind by another car.

The plaintiff instructed the defendant in relation to the first accident in March 1995. Some time after the second accident she instructed the defendant to act for her in relation to that claim also.

On 23 March 1999 the plaintiff and the defendant signed a document headed “Agreement as to costs”.

The plaintiff and the defendant signed a second agreement, dated 10 December 2002, bearing the same heading.

The plaintiff commenced the present proceedings on 19 October 2004, seeking a declaration that the two agreements were void, and orders that they be set aside. By way of consequential relief the plaintiff sought taxation of the costs payable by her to the defendant,…

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 Vizovitis v Ryan

Details

AGLC: Vizovitis v Ryan [2014] ACTSC 243
Case: [2014] ACTSC 243
Decision Date: 19 September 2014

CaseChat Overview and Summary

The case of Vizovitis v Ryan involved a dispute between a solicitor and a client regarding the fairness and reasonableness of an agreement concerning costs. The client, Mr Vizovitis, sought to have the costs agreements set aside, arguing that they were not fair and reasonable. The matter was heard in the Supreme Court of Queensland. The primary legal issues were whether the hourly rate stipulated in the costs agreement was excessive and whether the agreement was fair and reasonable, considering the benefit to the solicitor and the disadvantage to the client. The court had to determine whether the onus was on the solicitor to prove the fairness and reasonableness of the costs agreement, as per the repealed Legal Practitioners Act 1970.

The court found that the onus lay on the solicitor to demonstrate that the costs agreements were fair and reasonable. It was noted that the hourly rate in the agreement was significantly higher than the average rates charged by other solicitors in similar cases. Additionally, the court concluded that there was a clear benefit to the solicitor and a disadvantage to the client, which undermined the fairness of the agreement. The agreements were deemed to be not binding on the parties, and the court ordered the solicitor to pay the client $53,250.00 as compensation. The court also ordered that the solicitor pay the client’s costs, although this order was stayed for 14 days.

The court's decision highlighted the importance of the solicitor proving that a costs agreement is fair and reasonable, particularly when the hourly rate is significantly higher than the market rate. The ruling underscored the need for transparency and fairness in solicitor-client cost agreements, ensuring that neither party benefits disproportionately at the other’s expense. The orders reflect the court’s determination to rectify the imbalance in the cost agreement and compensate the client for the disadvantage suffered.

Orders

Orders of the court

The court declares that the agreements as to costs between the parties dated 23 March 1999 and 10 December 2002 are not binding on the parties.

1. judgment for the plaintiff in the sum of $53,250.00.

2. the defendant pay the plaintiff’s costs.

3. the order as to costs be stayed for 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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