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When does the 12 months in which to seek taxation commence?

In Victoria, solicitors have only a non-extendable 60 days in which to seek taxation of counsel’s fees, but clients have 12 months in which to seek taxation of solicitors’ fees, and clients other than ‘sophisticated clients’ as defined may seek an extension of time in which to apply.  Where the greatest uncertainty exists, in my mind at least, is in the case of suits for taxation by third party payers — non-clients who promise to pay others’ legal fees, and most particularly non-associated third party payers — non-clients whose promise to pay others’ fees is made to the client rather than to the lawyers.  I imagine that solicitors do not generally give bills to non-associated third party payers, such as the mortgagors to whom their clients lend money under documents which require the mortgagor to pay the mortgagees’ costs.  Rather, I imagine that the mortgagees generally just demand a sum from the mortgagor as an adjustment at settlement, and hand over the bill from their lawyers only upon demand.  Yet non-associated third party payers are entitled to seek taxation, and the question is — when does the time in which such a taxation may be applied for begin to run?

I must warn you that the rest of this post is likely to be extremely boring for most people, and understanding it, despite my attempt to state it as clearly as I can, is likely to involve considerable mental effort.

In Viscariello v Oakley Thompson [2012] VSC 351, Justice Ferguson decided a dispute between an individual who guaranteed his company’s obligation to pay the company’s legal fees, and the company’s lawyers.  The individual was presumed for the purpose of argument to be an associated third party payer, which seems like a very reasonable assumption to me. The dispute was about when the time limits commenced.  But the judgment does not resolve many mysteries, because it seems that the company and the director received the bills simultaneously, and though no bills were addressed to the guarantor qua guarantor, since he in fact received the bills at the time the company received them, time started to run from then. Continue reading “When does the 12 months in which to seek taxation commence?”

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Victorian Court of Appeal reiterates deprecation of unilateral communication with the Court after hearing by the filing of ‘supplementary submissions’

Frugtniet v Law Institute of Victoria [2012] VSCA 178 is the latest in the saga of a man with a Bachelor of Laws and a Master of Laws who has twice applied unsuccessfully for admission to the profession because of a failure to disclose his criminal convictions.  He had a degree of success in an appeal from a decision of the County Court.  But he became dissatisfied with his counsel after the hearing of the appeal and lodged an 18 page ‘Further Submission’ without leave, and without seeking leave.  The Court paid no attention to them and determined the appeal without further notice, saying the time for submissions is at the hearing.  One comes across this issue frequently, and you are probably sick of me banging on about it, but the other day I saw a litigant who should have known better just tack on to its submissions (which it had leave to file) a statutory declaration by way of supplementation of the evidence, many days after the end of the trial, and noting in the submissions that if the Tribunal was likely to find the evidence determinative, then it would like to make an application for leave to tender the hearsay into evidence.  Here is how the Court of Appeal fulminated unanimously in Mr Frugtniet’s case: Continue reading “Victorian Court of Appeal reiterates deprecation of unilateral communication with the Court after hearing by the filing of ‘supplementary submissions’”

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Costs of an application to set aside a default judgment

From memory, Williams is a bit light on when it comes to authority for the general rules guiding the exercise of discretion in relation to costs following an application to set aside a default judgment, so here’s some from the Supreme Court of the ACT, in a case between a lawyer and a legal regulator, just for double relevance to this humble newspaper. In Ezekial-Hart v Law Society of the ACT [2012] SCACT 135, a default judgment had been irregularly entered and was set aside ex debito justitiae, that is, as of right.  Ordinarily, an applicant to set aside such a judgment will get costs.  Not here, though, in part because the Law Society overlooked the irregularity and fought the judgment as if regularly entered until the judge pointed out their better point.  At [53], the meaning of ‘costs in the cause’ is spelt out, and at [54] various other kinds of costs orders’ effects are summarised.  There is also a review of cases relating to the costs consequences of not engaging in mediation, or not engaging in a bona fide manner.  Back to the costs of what is called in the Magistrates’ Court though: Continue reading “Costs of an application to set aside a default judgment”