Litig8: Fruits of taxation and staying an order allowing the taxation of costs

March, 2016

Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this email.

Part 5 of the March edition of Litig8

The recent decision of Bodycorp Repairers Pty Limited v Oakley Thompson & Co Pty Limited [2016] VSCA 19 is a useful reminder of issues that arise regarding costs orders including the Court’s need to balance the possible prejudices to each of the relevant parties to a proceeding when considering whether to grant a stay of orders allowing for the taxation of a lawyer’s costs.

Bodycorp Repairers Pty Limited (Bodycorp) had been involved in significant and lengthy litigation against among others, Mr Maisano (Maisano). Oakley Thompson (Firm) represented Maisano between 2004 and 2010 and again in 2012.

Bodycorp was unsuccessful in the proceedings against Maisano and Maisano obtained a costs order in his favour against Bodycorp.

Maisano commenced proceedings in the Costs Court in order to tax his costs. Shortly thereafter, Maisano terminated his retainer with the Firm without paying fees due to it and by motion, the Firm applied for orders allowing it to pursue the taxation of the costs in the Costs Court. Bodycorp and Maisano unsuccessfully opposed this application. The Court found that the Firm had an equitable right over the costs judgment awarded in favour of Maisano for all costs that were unpaid.

Bodycorp appealed the decision that the Firm had an equitable right over the costs judgment. As an interim measure, it sought to stay the costs orders made against it on the basis that it would suffer irremediable prejudice if the Firm was permitted to complete taxation of the costs order made in favour of Maisano and obtain the fruits of that taxation.

The Court refused the stay and found that there were no special circumstances justifying departure from the presumption that an appeal should not ordinarily deprive a successful litigant of the fruits of litigation by operating as a stay of execution. Upon application by the Firm, Bodycorp was also ordered to pay security for costs incurred by reason of Bodycorp’s appeal.

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