Artistic Builders Pty Limited v Nash

Artistic Builders Pty Limited and Nash brought an action against two firms of solicitors for professional negligence. The case was heard by the Supreme Court of New South Wales. Nash was successful against the second firm of solicitors, while Artistic Builders was unsuccessful against the first firm. The first firm sought costs from the date the second plaintiff brought its claim against them, arguing that their Limitation Act defence applied. The court had to decide the legal issues regarding the costs application by the successful defendant, specifically the interaction of sections 4 and 29 of the Professional Standards Act, which imposes a statutory cap on costs.

The court found that the apportionment of costs was appropriate in these circumstances. The issues of liability, breach of duty, causation, and consequential damages were determined in favour of Nash and were considered severable and dominant over the limitation issue. The first firm was entitled to 20% of their costs from the date Nash brought its claim against them. The court also ruled that Nash was entitled to a partial direct costs order against the unsuccessful defendants in respect of the costs of the first firm, as Nash's claim was a different claim to that of the second plaintiff. The limitation under section 29 of the Professional Standards Act did not apply to the making of a direct order against the unsuccessful defendants to pay a portion (50%) of the successful defendants' costs.

The court granted a stay on the judgment and orders, considering the proposed grounds for appeal and the risk that monies paid under a judgment may be irrecoverable if an appeal is successful. The court made the following orders: In respect of the notice of motion of the 11th to 17th defendants, Harris & Co, filed on 22 February 2011, a stay order was granted. The final orders included a stay on the judgment and orders as sought in the notice of motion.