Andrew Marshall v Stacks/Goudkamp Pty Limited

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Andrew Marshall v Stacks/Goudkamp Pty Limited [2011] NSWDC 5

Hearing dates:

15, 16, 17 & 18 November 2010

Decision date:

04 February 2011

Before:

Colefax DCJ

Decision:

(1) Pursuant to section 348 of the Legal Profession Act , and subject to Order (2), Keddies Solicitors to indemnify Stacks/Goudkamp Pty Limited for costs payable or incurred by Stacks/Goudkamp Pty Limited in the proceedings brought in matter No. 295654 of 2007.

(2) Keddies to indemnify Stacks/Goudkamp Pty Limited for two-thirds of the costs payable or incurred by Stacks/Goudkamp Pty Limited in the Notice of Motion initially filed 17 May 2010 and amended on 12 August 2010.

(3) Direct the Registrar to provide the Office of the Legal Services Commissioner with a copy of these Reasons in order that the Commissioner may consider whether any legal practitioner acting on behalf of Mr Marshall has engaged in professional misconduct or unsatisfactory professional conduct.

(4) Exhibits to be returned after 28 days.

(5) Any application to vary the costs orders to be notified to my associate within 7 days.

Catchwords:

Personal costs orders against solicitors - Referral of solicitors' conduct to Office of the Legal Services Commissioner

Legislation Cited:

Legal Profession Act 2004 (NSW) s348
Civil Procedure Act 2005 (NSW) ss98 & 99

Category:

Principal judgment

Parties:

Stacks/Goudkamp Pty Limited (Applicant)
Keddies Solicitors (Respondent)

Representation:

Solicitors:
Stacks/Goudkamp Pty Limited (Applicant)
Keddies Solicitors (Respondent)

File Number(s):

295654 of 2007

REASONS FOR JUDGMENT

The Nature of the Application:

1. By an Amended Notice of Motion ("the Notice of Motion") the applicant, Stacks/Goudkamp Pty Limited ("Stacks"), the defendant in the primary proceedings, seeks an order pursuant to section 348 of the Legal Profession Act 2004 and/or sections 98 and 99 of the Civil Procedure Act 2005 that the respondent, Keddies Solicitors ("Keddies"), the former solicitors for the plaintiff in the primary proceedings, indemnify Stacks for costs payable or incurred by it in those proceedings.

1. The application is opposed.

Factual Background:

1. Very few of the facts relevant to the determination of the issues raised on the present application were in dispute. They can be summarised as follows.

1. On 19 September 1984 a child (Matthew) was born to Mr & Mrs Marshall.

1. As Matthew entered adolescence difficulties arose in the Marshall household. Ultimately, in August 2000 Matthew commenced living at the Burnside Homes conducted by the Uniting Church at Eastwood.

1. In early December 2001 Matthew was killed in a motor vehicle collision.

1. Matthew's death directly gave rise to three separate sets of "proceedings".

1. First, the driver of the vehicle which killed Matthew was prosecuted. In July 2002 he was committed for trial in this Court and a hearing date was fixed for November 2002 ("the criminal proceedings").

1. Secondly, Mr & Mrs Marshall brought a claim against the third party insurer of that driver ("the Allianz claim"). The Allianz claim was settled on 11 November 2002 without a Statement of Claim being filed.

1. Thirdly, Mr & Mrs Marshall brought proceedings in this…