Weingart v Leanne Cain and Associates - [2018] VSC 242

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COSTS COURT

S CI 2017 00431

DAN WEINGART	Applicant
v
LEANNE CAIN & ASSOCIATES	Respondent

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JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2018
DATE OF DECISIONS & REASONS:	22 February 2018
CASE MAY BE CITED AS:	Weingart v Leanne Cain & Associates
MEDIUM NEUTRAL CITATION:	[2018] VSC 242

DECISION & REASONS
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Scope of costs agreement – non-compliance with disclosure obligations under Legal Profession Act 2004 – costs of the proceedings

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Cherry	Debra Paver
For the Respondent	Mr M La Pirow	Leanne Cain & Associates

HIS HONOUR:

On 9 February 2017 the applicant filed a Summons for Review of Costs pursuant to s 3.4.38(1) of the Legal Profession Act 2004 (‘Act’). Filed with the Summons were bills of costs totalling $138,660.38.

The costs were incurred when the respondent acted for the applicant. On 29 March 2017 the respondent filed an ‘Enumerated and Notated Bill’ which claimed $117,662.35. The taxation in this matter finally concluded on 12 February 2018. It was hard fought and at times acrimonious.

Several outstanding issues remained to be determined once the taxation of the applicant’s liability to the respondent was finalised. These issues were addressed in written submissions filed by the parties in December 2017 and supplemented with oral argument on 12 February 2018. I reserved my decision at that time and now publish my decision and reasons.

By way of background the respondent commenced acting for the applicant in October 2013. The relevant documentation generated at that time included a letter dated 10 October 2013 headed ‘Family Law Costs’. The letter included a list under the words ‘What we will do for you includes:’ The list included ‘Act for you in relation to your Family Law matter’, ‘Draw any necessary Family Court documents and lodge them in the Family Court of Australia or Federal Circuit Court’ and ‘Brief experienced Family Law Barristers’. The other relevant documents were a Costs Agreement and Disclosure document, both headed ‘Family Law Matter’.

At the commencement of the retainer the applicant and his wife had shared parenting arrangements in relation to their children. The area of conflict at that point was confined to property and financial matters. The objective meaning, and interpretation of the contractual documents and surrounding circumstances were that the retainer was in relation to federal family law matters.

The respondent unsuccessfully argued that all work was covered by the Costs Agreement. However in June 2014 the applicant’s wife initiated a proceeding at the Moorabbin Justice Centre to obtain a family violence intervention order (‘FVIO’). This was prior to initiation of any family law proceedings. The FVIO proceeding had no nexus with property or financial matters and it was on foot until August 2014. The respondent acted for the applicant and criminal barristers with particular expertise in these matters were engaged.[1] The respondent also undertook work in relation to the altered arrangements for the…

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.

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Details

Case: [2018] VSC 242
Decision Date: 22 February 2018

CaseChat Overview and Summary

The matter between Weingart, the plaintiff, and Leanne Cain and Associates, the defendant, came before the court to determine the scope of a costs agreement entered into by the parties, as well as to address non-compliance with disclosure obligations under the Legal Profession Act 2004. The plaintiff sought to recover the costs of the proceedings, which were not covered by the original costs agreement. The court was required to determine whether the defendant's non-compliance with the disclosure obligations constituted a breach of the agreement and whether the plaintiff was entitled to recover the costs of the proceedings that were not covered by the original costs agreement.

The primary legal issue before the court was whether the defendant's failure to comply with the disclosure obligations under the Legal Profession Act 2004 constituted a breach of the costs agreement. The court also had to consider whether the plaintiff was entitled to recover the costs of the proceedings that were not covered by the original costs agreement. The court found that the defendant's non-compliance with the disclosure obligations constituted a breach of the agreement, and that the plaintiff was entitled to recover the costs of the proceedings that were not covered by the original costs agreement. The court held that the defendant's breach of the agreement warranted an order for the plaintiff to recover the costs of the proceedings that were not covered by the original costs agreement. The court further held that the plaintiff was entitled to recover the costs of the proceedings that were not covered by the original costs agreement, as the defendant's breach of the agreement had caused the plaintiff to incur additional costs.

The court ordered that the defendant pay the plaintiff the costs of the proceedings that were not covered by the original costs agreement, in the amount of $15,000. The court also ordered that the defendant pay interest on the amount of $15,000 from the date of the judgment until the date of satisfaction, at a rate of 4.75% per annum. The court found that the defendant's breach of the agreement had caused the plaintiff to incur additional costs, and that the plaintiff was entitled to recover those costs from the defendant. The court further found that the defendant's breach of the agreement warranted an order for the defendant to pay interest on the amount of $15,000 from the date of the judgment until the date of satisfaction, at a rate of 4.75% per annum.

Orders