Aubigny Pty Ltd v Daryl Wharff No. Scciv-02-1310

[2003] SASC 315

AUBIGNY PTY LTD & ANOR v DARYL WHARFF

[2003] SASC 315

Civil

1. DEBELLE JThis action concerns the failure by a solicitor to deliver to his former clients documents which the clients say remain in the solicitor’s possession.

2. It was necessary for an order by way of injunction to be made to compel delivery of those documents. The order was made on 1 November 2002. Thereafter, there was a failure to comply with the injunction. The plaintiffs issued a further summons that came before me on 21 March 2003. On that occasion the solicitor was present and he was examined and cross-examined. The issues were clearly spelled out. The solicitor gave an explanation for his failure to comply and that explanation was accepted.  The solicitor was clearly reminded of his duties to comply with the injunction.

3. However, the solicitor did not comply completely with the orders. It is fair to say that since 21 March numerous hearings have been occasioned by a desire on the part of the plaintiffs to enforce the orders and to recover the documents which are said to remain with the defendant’s solicitor.  There has been a degree of subsequent compliance but I am satisfied there has been a failure fully to comply with the order.

4. The plaintiffs do not seek to bring proceedings for contempt. Their concern is to recover the documents. They have taken the pragmatic attitude that they can do no more than note that there is an order requiring the giving up of documents and adjourn the matter. It is appropriate to adjourn it to the suspense list.

5. There remains the issue of costs. The plaintiffs apply for costs to be ordered on an indemnity basis.

6. As is apparent, there have been quite a number of hearings in order to seek compliance with the order initially made on 1 November 2002. However, the defendant remains in breach of that order although there has been a substantial degree of compliance.

7. I think it is appropriate to consider two separate periods for the purposes of making the orders for costs.  The first is the period up to the order of 1 November 2002 and a period of 10 days thereafter. That period of 10 days is the time within which the defendant had to comply with the order made on 1 November 2002. For that period I think the appropriate order is that the plaintiffs have their party and party costs.  Mr Meyer, who appeared for the plaintiffs, contended that, given that the defendant is a solicitor who should have been well aware of his obligations, it is appropriate to order costs on a basis higher than party and party. I do not agree. I do not consider the fact that the defendant is a solicitor places him in a different position from any other kind of defendant.

8. Thereafter, it has been necessary for a number of reasons to enforce the order and to secure a degree of compliance with it.  This is an instance of misconduct by a party which causes loss in the form of increased costs to the other parties to the action. Misconduct of that kind justifies an order for costs other than party and party costs: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court of Australia, 3 May 1991), a decision approved by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited, (1993) 46 FCR 225 at 233.

9. I think it appropriate to order that the plaintiffs have their costs as taxed on a solicitor and client basis rather than on the indemnity basis sought by the plaintiffs, since the defendant should be liable only for the costs reasonably incurred: cf Citibank Savings Ltd v Pirrotta (unreported, 1 April 1998, Judgment No. S6603).

10. Before I make the order for costs I note that, notwithstanding that he appeared on most, if not all, of the applications, Mr Meyer does not seek counsel costs for himself. Instead, there will be counsel fees only for Mr Jeney, who has appeared with him on each of the hearings. That is a very proper attitude on the part of Mr Meyer to adopt and he is to be complimented for it. I make this observation so that it can be referred to if necessary by the taxing officer.

11. For these reasons there will be orders as follows:

    1.Adjourn this action to the Suspense List.

    2.The defendant shall pay the plaintiffs’ costs for the period from institution of this action until 11 November 2002 on a party and party basis.

    3.That the defendant pay the plaintiffs’ costs from 12 November 2002 to the present date on a solicitor and client basis.