Litigation marathon … Brunswick lawyer out of time for umpteenth review of costs assessment … Ballooning costs for small time motor repair case … More from the Katzenjammer Kids … Has the spillage of ink been quelled?
Trouble with the Toyota
THERE'S a fresh twist in the nine year saga that Brunswick lawyer Gabriel Kuek has pursued over the break down of his Toyota Camry in May 2003.
Barry Lane has chronicled for this organ previous chapters in the adventures of the legendary litigator.
See: Another legendary litigator (Nov 8, 2006).
See: Drought breaks for Katzenjammer Kid (March 8, 2011).
The latest news is a decision by Associate Justice Nemeer Mukhtar in the Vic Supremes last month that may, finally, kybosh further expenditure of time, energy and money on this ordeal.
He ruled that Kuek was out of time in seeking another review of the costs order against him and that he had not met the overarching obligations of the Civil Procedure Act - which is designed to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.
Mukhtar said that the Katzenjammer Kid was seeking to pursue a prolonged and laborious probing into the other side's costs that had not been pursued at an earlier remitted review before Associate Justice Jamie Wood.
"Even if something could be aid against that, in my view the conduct of this case, and the omissions in this case and the delay have been so egregious that the greater injustice lies in not bringing finality now to this case."
It all started over nine years ago when Gabe's Camry had been repaired by Devlan Pty Ltd, trading as Luby's Mobile Mechanics. It involved the replacement of a time belt and other tinkering.
Nearly two months later the Camry broke down again. The timing belt had frayed and the engine had bent valves.
Kuek sued claiming $3,856, but Magistrate Hassard at the Heidelberg Court dismissed it with costs of $5,909. He found there was a lack of causation between the fraying timing belt and the damage to the engine.
Rosemary Balmford J dismissed an appeal on various points of law and awarded indemnity costs.
Gabe went to the Court of Appeal, which dismissed the appeal on the substantive issues but allowed it on the matter of indemnity costs.
Gabe was required to to pay the costs of the hearing before Balmford and the Court of Appeal on a party/party basis.
Then the substantive issues of the saga morphed a gigantic costs struggle.
On October 10, 2007 the mechanic obtained from Taxing Master Wood an order for costs of $39,105.
Gabe sought a review and the bill was reduced by $375 for GST and a year later he was also ordered to pay 90 percent of the repairer's costs of the taxation.
Kuek opted for another review by a Supreme Court judge and by now it had emerged that he contended there had been a breach of the indemnity principle - that if the respondents were not liable to their own lawyers for an amount at least equal to the amount of the party/party bill, then it should be taxed further.
Beach J examined the retainer letters, the bill and the signed costs agreement and concluded that the total of the party/party costs as taxed was not greater than the amount the mechanic was liable to pay his lawyers.
There was no breach of the indemnity principle. Application for review was dismissed with costs.
The Katzenjammer Kid appealed - and was successful - the appeal judges finding he had been denied procedural fairness. A fresh hearing was ordered.
The whole thing came back before Wood AsJ, where Kuek secured orders for the production of documents.
Crucially Keuk did not press for the documents in order for him to go behind the tax invoices sent by the respondents' solicitors.
In any event, Wood found no breach of the indemnity principle. The previous taxation order was confirmed at $38,730.
Mukhtar said:
"Pause there. The outcome after three years and eight months since the first review by the taxing master was the making of exactly the same order as had been made on that review.
The matter has come full circle, and this was about eight years after the Magistrates Court proceedings and two trips to the Court of Appeal."
After the Brunswick marvel refused a reasonable offer of compromise he was ordered to pay the costs of the review on an indemnity basis after April 4, 2011.
Naturally, Kuek sough a review of Wood's decision - contending that the associate judge had done no more than assume that a rendered invoice established liability.
However, there was a problem.
Wood's decision was dated September 29, 2011. Kwek was required to file and serve a notice of review within 14 days of the order or reasons.
The fourteenth day expired on October 13, 2011.
Kuek swore that his office posted a letter to the Prothonotary on October 14 seeking a review of the order for costs.
Ass J Mukhtar said that what happened "arouses real restlessness about Kuek's conduct or inaction".
Having said he posted the application for review on Oct. 14 he did not make further enquiries of the Prothonotary's office and he did not tell the respondents what he was intending to do.
On December 22 last year the respondents served on Kuek a bill for the remitted review heard by Wood.
It was not till February 14 this year, 123 days after he said he posted the notice, that he asked the Prothonotary's office about his application.
He gave no explanation why he waited so long to make this enquiry.
In March he disputed the respondents' costs of the taxation.
On the facts, his application to review Wood's findings was over five months out of time.
Famous barrister David Perkins appeared before Mukhtar for the undaunted litigator.
Perky himself has had a colourful career with a few run ins with the Stipes.
Some of his previous scrapes can be found here and here.
There was also the famous incident of Perky at night wearing a dress in a residential street, resulting in a charge which was later dismissed.
Perky submitted that the Prothonotary's office much have lost the paper work and he cited a Latin maxim, actus curiae neminum gravabit, to the effect that no man should be prejudiced by an act of the court!
Even after hearing Perkins' strenuous submissions on behalf of Kuek, the Ass J said he could not be satisfied on the evidence that the papers were posted on Oct 14, 2011.
HH hastened to add that it didn't mean Kuek was being untruthful, it was just that he failed to prove it.
The notice of review was set aside and the associate judge observed:
"A lot of ink has been spilt in this case."
So, the case has been to the magistrate's court, the Supreme Court twice, the Court of Appeal twice, and before associates justices on three occasions.
The question on numerous lips is: will the spillage continue?