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Attard v James Legal Pty Ltd

Attard v James Legal Pty Ltd

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Case Copied 23 November 2010 83 min read

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Reported Decision: 80 ACSR 585

New South Wales

Court of Appeal

CITATION: Attard v James Legal Pty Ltd [2010] NSWCA 311

HEARING DATE(S): 8 June 2010, 9 June 2010

JUDGMENT DATE:
23 November 2010

JUDGMENT OF: Beazley JA at 1; Giles JA at 4; Tobias JA at 33

DECISION: (a) Appeal allowed in part.
(b) Set aside Order 2 made by Simpson J on 4 September 2009.
(c) In lieu thereof, subject to Order (d), order pursuant to UCPR 20.14 that the amount due and owing by the first and second cross-defendants to the cross claimants pursuant to the cross-claim be referred to a referee experienced in the assessment of legal costs and disbursements for assessment as to the fairness and reasonableness of the costs claimed by the cross-claimants in their cross-claim upon condition that the first and second cross-defendants pay to the cross claimants 60% of the amounts referred to in the said Order 2 within 28 days of the date of this order.
(d) Direct that the parties submit within 21 days of the date of these orders, an order for reference in accordance with Order (c) to an agreed referee which order will be made in chambers.
(e) Stay Orders 3 and 4 made by Simpson J on 4 September 2009 until the said reference has been completed and any report of the referee has been adopted or otherwise dealt with by the Court pursuant to UCPR 20.24.
(f) The appellants to pay 75% of the respondents’ costs of the appeal.
(g) The costs of the reference referred to in Order (b) above be reserved to the trial judge when dealing with the referee’s report pursuant to UCPR 20.24.
(h) Grant liberty to the parties to apply for variation of these orders by notice of motion accompanied by written submissions to be filed and served within 7 days of the date of these orders.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: COSTS – assessment – solicitor-client – whether primary judge should have referred quantum of costs claimed to referee pursuant to UCPR 20.14 - EVIDENCE – admissibility – statements as to what a person would have done – whether 5D(3) CLA required Court to ignore statement in affidavit notwithstanding no objection taken to its admission - LAWYERS – negligence – advocates’ immunity – attaches to acts and omissions and extends to conduct of instructing solicitor – whether failure to advise that stay applied unless and until Court granted leave to proceed led to decision affecting conduct of defence to cross-claim – offence to finality principle not necessary - LAWYERS – negligence – breach of duty –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 311
Decision Date: 23 November 2010

CaseChat Overview and Summary

The appeal in *Attard v James Legal Pty Ltd* concerned a dispute over legal costs and alleged negligence. The appellants, the cross-defendants, sought to challenge the quantum of costs claimed by the respondents, the cross-claimants, and argued that the primary judge had erred in refusing to refer the assessment of these costs to a referee. The appellants also contended that the respondents, as their solicitors, had been negligent in their conduct of the defence to a cross-claim, particularly in failing to advise that the cross-claim was stayed unless and until the Court granted leave to proceed. The appeal was heard by Beazley, Giles, and Tobias JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge should have exercised discretion under UCPR 20.14 to refer the assessment of the respondents' costs to a referee, and whether the respondents had breached their duty of care or the terms of their retainer by failing to advise the appellants about the stay of the cross-claim and the need for leave to proceed. The court also considered whether the respondents' conduct caused the appellants loss, and if so, whether the primary judge erred in refusing to assess the probabilities of a hypothetical application for leave to proceed under s 444E(3) of the *Corporations Act*. The question of advocates' immunity and its extension to instructing solicitors was also relevant to the alleged negligence.

The Court of Appeal allowed the appeal in part, finding that the primary judge should have referred the quantum of costs claimed by the respondents to a referee experienced in legal costs assessment pursuant to UCPR 20.14. The court reasoned that such a reference was appropriate to ensure the fairness and reasonableness of the costs claimed. While the court did not set aside the primary judge's findings regarding the retainer and the alleged negligence, it did vary the orders concerning the costs. The court ordered that the appellants pay 60% of the costs claimed by the respondents within 28 days, subject to the outcome of the reference. The costs of the reference were reserved to the trial judge. The court also ordered that the appellants pay 75% of the respondents' costs of the appeal.

Orders

Orders of the court

(a) Appeal allowed in part.

(b) Set aside Order 2 made by Simpson J on 4 September 2009.

(c) In lieu thereof, subject to Order (d), order pursuant to UCPR 20.14 that the amount due and owing by the first and second cross-defendants to the cross claimants pursuant to the cross-claim be referred to a referee experienced in the assessment of legal costs and disbursements for assessment as to the fairness and reasonableness of the costs claimed by the cross-claimants in their cross-claim upon condition that the first and second cross-defendants pay to the cross claimants 60% of the amounts referred to in the said Order 2 within 28 days of the date of this order.

(d) Direct that the parties submit within 21 days of the date of these orders, an order for reference in accordance with Order (c) to an agreed referee which order will be made in chambers.

(e) Stay Orders 3 and 4 made by Simpson J on 4 September 2009 until the said reference has been completed and any report of the referee has been adopted or otherwise dealt with by the Court pursuant to UCPR 20.24.

(f) The appellants to pay 75% of the respondents’ costs of the appeal.

(g) The costs of the reference referred to in Order (b) above be reserved to the trial judge when dealing with the referee’s report pursuant to UCPR 20.24.

(h) Grant liberty to the parties to apply for variation of these orders by notice of motion accompanied by written submissions to be filed and served within 7 days of the date of these orders.

[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Attard v James Legal Pty Ltd [2010] NSWCA 311
HEARING DATE(S):	8 June 2010, 9 June 2010
JUDGMENT DATE:	23 November 2010
JUDGMENT OF:	Beazley JA at 1; Giles JA at 4; Tobias JA at 33
DECISION:	(a) Appeal allowed in part. (b) Set aside Order 2 made by Simpson J on 4 September 2009. (c) In lieu thereof, subject to Order (d), order pursuant to UCPR 20.14 that the amount due and owing by the first and second cross-defendants to the cross claimants pursuant to the cross-claim be referred to a referee experienced in the assessment of legal costs and disbursements for assessment as to the fairness and reasonableness of the costs claimed by the cross-claimants in their cross-claim upon condition that the first and second cross-defendants pay to the cross claimants 60% of the amounts referred to in the said Order 2 within 28 days of the date of this order. (d) Direct that the parties submit within 21 days of the date of these orders, an order for reference in accordance with Order (c) to an agreed referee which order will be made in chambers. (e) Stay Orders 3 and 4 made by Simpson J on 4 September 2009 until the said reference has been completed and any report of the referee has been adopted or otherwise dealt with by the Court pursuant to UCPR 20.24. (f) The appellants to pay 75% of the respondents’ costs of the appeal. (g) The costs of the reference referred to in Order (b) above be reserved to the trial judge when dealing with the referee’s report pursuant to UCPR 20.24. (h) Grant liberty to the parties to apply for variation of these orders by notice of motion accompanied by written submissions to be filed and served within 7 days of the date of these orders. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	COSTS – assessment – solicitor-client – whether primary judge should have referred quantum of costs claimed to referee pursuant to UCPR 20.14 - EVIDENCE – admissibility – statements as to what a person would have done – whether 5D(3) CLA required Court to ignore statement in affidavit notwithstanding no objection taken to its admission - LAWYERS – negligence – advocates’ immunity – attaches to acts and omissions and extends to conduct of instructing solicitor – whether failure to advise that stay applied unless and until Court granted leave to proceed led to decision affecting conduct of defence to cross-claim – offence to finality principle not necessary - LAWYERS – negligence – breach of duty –…