Stanko Perica v Wylkant Pty Limited [1994] ACTSC 76 (29 July 1994)

SUPREME COURT OF THE ACT

STANKO PERICA v WYLKANT PTY LIMITED
No. SC514 of 1993
Number of pages - 4
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice and Procedure - costs - review of Registrar's certificate of taxation - no new question of principle.

Legal Practitioners Act, 1970 (ACT), s.186

HEARING

CANBERRA, 10 June 1994
29:7:1994

The Plaintiff appeared in person.

Counsel for the Defendant: Mr D Lander

Instructing solicitors: Lander and Co

ORDER

THE COURT ORDERS THAT:
1. Time be extended to enable the plaintiff to apply for a review

of the Certificate of Taxation of his solicitor's costs in relation
to this matter.
2. These costs will be allowed at $404.00 and the Certificate of
Taxation will be varied accordingly.

DECISION

HIGGINS J On 4 November 1993 the Registrar taxed the costs and disbursements payable by the plaintiff to his solicitors, Lander and Co, in relation to this matter and allowed the same in the sum of $553.67.

2. By notice of motion dated 7 March 1994, the plaintiff sought an extension of time to permit a review of that taxation pursuant to section 186 of the Legal Practitioners Act, 1970 (ACT).

3. The taxation had been conducted in the absence of the plaintiff. According to the plaintiff, he was not notified of the taxation because he had, at the relevant time, changed address. He did not find out about the taxation until shortly after 24 November 1993.

4. A solicitor then engaged by the plaintiff made several enquiries of the Supreme Court Registry to obtain details of the taxation. He received those details on 23 December 1993.

5. On 13 January 1994, Lander and Co advised the plaintiff's new solicitor that an (amended) Special Claim had been issued seeking recovery of the costs and disbursements as taxed and allowed on 4 November 1993. On 21 January 1994 the solicitor conferred with the plaintiff and obtained his instructions to seek to have the taxation reviewed.

6. On 7 April 1994, however, the plaintiff terminated the instructions of that solicitor. The Master, on 13 May 1994, granted leave for that solicitor to withdraw from these proceedings.

7. Lander and Co had been retained by the plaintiff in relation to this matter on 21 June 1993. A retainer agreement was executed. Relevantly, the plaintiff agreed that the solicitor would charge an hourly rate of $160.00 for work done on his behalf.

8. This matter was an action for damages for detinue and conversion against the defendant. Other solicitors had, until Lander and Co was retained, been acting for the plaintiff.

9. Mr Lander, of Lander and Co, conducted the matter. He attended the plaintiff for instructions, obtained the file from the previous solicitors and perused it to prepare for a hearing then listed for 3 August 1993.

10. At a conference on 6 July 1993, it seems that the plaintiff declined to accept certain advice offered by Mr Lander. That situation was explained by Mr Lander in a letter to the plaintiff dated 7 July 1993. The plaintiff was invited, if he could not accept Mr Lander's advice, to obtain other legal advice. If he so decided, Mr Lander advised that he would render his account promptly so that another solicitor could be retained without undue delay.

11. On 23 July 1993, a further solicitor advised Mr Lander that she was now instructed in the matter. Mr Lander offered to forward the file to her on payment of his account which had, by then, been rendered to the plaintiff.

12. That account was for $520.00 as per costs agreement of 21 June 1993 for work done and $40.00 for "disbursements".

13. It was itemised as follows:

Legend:
L = letter (to)
PA = personal attendance (on)
TA = telephone attendance (on)
P = peruse
DATE ITEM/SERVICE TIME (mins)
21.06.93 PA client 25
21.06.93 Fax Romano and Co 6
24.06.93 L client 10
24.06.93 TA client 12
02.07.93 P,L Romano and Co 5
04.07.93 P client file,
pleadings, statement
60
06.07.93 PA client 60
07.07.93 TA client 7
08.07.93 L client 10
TOTAL 195
3 hours 15 minutes at $160 per hour = $520.00
DISBURSEMENTS:
telephone, photocopying, facsimile,
sundries, say $ 40.00

14. On the hearing before me, the plaintiff indicated that he wished to challenge the charge for original attendance on 21 June 1993. He said Mr Lander did not attend him for 25 minutes as claimed. Mr Lander explained that about 10 minutes was spent consulting the plaintiff's previous solicitors to determine what the matter was about and the state of the proceedings.

15. That seems to me to be a reasonable explanation for the apparent discrepancy. The plaintiff conceded that the attendance on him was about 15 minutes.

16. The next item challenged was the charge for perusal of the file held by the plaintiff's previous solicitors. The plaintiff's case was that the solicitor he instructed after changing from Mr Lander had, on 24 November 1993, charged out for 40 minutes for the same or similar work. However, I note Mr Lander was perusing the file with a view to preparation for an imminent hearing. I do not know what purpose the subsequent solicitors had in mind which might affect the time taken to peruse the file in question.

17. It does not seem to me that the 60 minutes claimed by Mr Lander for the task is unreasonable.

18. The next challenge was to the charge for the personal attendance on 6 July 1993. One hour was claimed for this. It was the attendance referred to in the letter of 8 July 1993 from Mr Lander to the plaintiff to which I have already referred.

19. Mr Lander's file note was tendered. It purports to record an attendance between 3.30pm and 4.30pm on that day. The plaintiff tendered a card confirming the commencement time of the appointment signed by Mr Lander. He also tendered an invoice from Canberra Toyota in respect of his motor vehicle. It was repaired on 6 July 1993. Someone apparently employed by Canberra Toyota has endorsed on the invoice that the vehicle was picked up at 4.15pm on 6 July 1993. The plaintiff stated that he picked it up. That would indicate that the concluding time for the interview with Mr Lander, although his offices are not far away, must have been about 4.00pm.

20. If Mr Lander's note is in error, the recorded time would be 30 minutes and the account reduced by $80.00. The documentary evidence raises some doubt as to the accuracy of Mr Lander's note but, in any case, the attendance could not have been less than 30 minutes. I would allow $80.00 instead of $160.00 for this item.

21. The amount claimed for "disbursements" was also challenged. There is no reason why charges payable by a solicitor in respect of faxes, telephone calls and postage should not be allowed as disbursements. Normal office overheads are not regarded as disbursements. They are included in the calculation of scale or time related charges.

22. The fax and letters clearly involved charges which the solicitor would have to pay. The telephone attendances may have involved a charge if they were outgoing calls. It is not clear that they were outgoing rather than incoming calls. In round figures, I cannot be satisfied that more than $4.00 in charges would have been incurred. The sum of $36.00 should be disallowed.

23. In the circumstances, I extend time for applying for the review of the Registrar's Certificate of Taxation. Having reviewed that decision, for the reasons given the costs claimed will be allowed at $404.00 and the Certificate of Taxation will be varied accordingly.