Bagley v Pinebelt Pty Ltd

[2000] NSWSC 830

CITATION:	Bagley v Pinebelt Pty Ltd [2000] NSWSC 830
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2719/98
HEARING DATE(S):	18 August 2000
JUDGMENT DATE:	18 August 2000
PARTIES :	Albert John Bagley (P/A) Pinebelt Pty Ltd (D) M S Abdul-Karim (R)
JUDGMENT OF:	Hamilton J

COUNSEL :	A Iuliano (P/A) No appearance (D) M M Hilbery (R)
SOLICITORS:	Commins Hendriks (P/A) No representation (D) John McEncroe & Company (R)
CATCHWORDS:	PROCEDURE [551] - Costs - Jurisdiction - Persons not parties to proceedings - Barrister - Form of order against barrister.
LEGISLATION CITED:	Supreme Court Rules Part 52A rr 9 & 43A
DECISION:	Order that barrister indemnify plaintiff against costs of claims relating to caveat and pay plaintiff's costs of the claim for costs on the indemnity basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 18 AUGUST 2000

2719/98 ALBERT JOHN BAGLEY v PINEBELT PTY LIMITED

JUDGMENT

HIS HONOUR:

1    On 7 July 2000 I delivered judgment on an application that Michael Abdul-Karim, Barrister, pay the plaintiff's costs of these proceedings: Bagley v Pinebelt Pty Ltd [2000] NSWSC 655 (“my judgment”). This morning the form of the order that Mr Abdul-Karim pay costs was debated before me. Mr Hilbery, of counsel for Mr Abdul-Karim, proposed that the order in respect of the costs of the proceedings, which I had indicated I proposed to make Mr Abdul-Karim responsible for, should be in the form of an order that the respondent pay the plaintiff's costs on a party/party basis of the removal of the second caveat. I had already suggested in [31] of my judgment that in my view the appropriate order was one framed in terms of indemnification under Pt 52A r 43A(1)(c) of the rules of the Supreme Court 1970 (“the SCR”). Mr Hilbery has thus submitted that I should make a lesser order, namely, an order for the payment of party/party costs rather than the full indemnification I foreshadowed in [31].

2    I do not accede to this submission. The first reason for my making an order in the form that I foreshadowed is that r 43A appears to limit the orders that may be made by the Court under that rule and to provide that, where the order is made in favour of a party other than the client, the order should be in the form that the barrister indemnify that party. As is apparent from my judgment, Mr Abdul-Karim did not appear for any party in these proceedings, so that the party to these proceedings in whose favour the order is to be made, namely, the plaintiff, is not and never was a client of Mr Abdul-Karim and it is therefore in reliance on and within r 43A(1)(c) that the order is to be made. Mr Hilbery has pressed on me that the Court has a general discretion as to costs and that this ought not be regarded as limited by the terms of r 43A(1)(c). Whether there is such a limitation I need not determine because, in any case, the view that I take by reason of the circumstances set out in my judgment is that the appropriate order is an order on an indemnity basis, so that no conflict between my power and my intentions arises from the form of r 43A(1). I am a little inclined to the view that the general power to order costs is limited in the circumstances which r 43A(1) deals with to the actual orders specified in subparagraphs (a), (b) and (c) of that subrule. However, if I were minded to order Mr Abdul-Karim to pay less than all the costs involved, whilst the word “indemnify” has in it some sense of a full reimbursement, it may well be that within r 43A(1)(c) the Court has a power to limit the extent of the indemnification and to order an indemnification something less than a full indemnification. However, as I have said, in light of the view that I have taken about the facts of the matter, it is not necessary for me to explore that situation further.

3    The prayer seeking the costs against Mr Abdul-Karim is contained in the summons although he is not named as a defendant. That offers no difficulty; there is not the faintest doubt that Mr Abdul-Karim was on notice of the application, since he has at all times appeared and had the question of costs fully argued on his behalf by a very senior member of the Bar in the person of Mr Hilbery.

4    The circumstances in which this application for costs arises also leads me to the conclusion that Mr Abdul-Karim ought pay the costs of the application on an indemnity basis. I do not mean by taking this view to indicate that there was anything unreasonable in Mr Hilbery appearing or putting the arguments he did, or in his instructing solicitors defending the costs application on Mr Abdul-Karim's behalf. Apart from anything else, the use of this rule is quite novel. I am not aware of an order under it having been made against a barrister previously in New South Wales, although orders have been made against counsel in other jurisdictions. However, the whole necessity for the costs argument, as of the proceedings generally, was caused by the conduct of Mr Abdul-Karim about which I have expressed my views in my judgment. For that reason I think it appropriate to order the costs of the application also on an indemnity basis and I propose to do so. In my view, the plaintiff ought not be out of pocket in respect of his applications for removal of the caveat or for costs against Mr Abdul-Karim.

5    However, the costs to be ordered are not the general costs of the proceedings. It is necessary to define them in a more narrow way. The summons in these proceedings filed on 5 June 1998 claims, as well as relief relating to caveat 5019019V, judgment for a sum of $10,000-odd for rent. That claim in the proceedings Mr Abdul-Karim had nothing to do with and is not responsible for. The orders that should be made against him are orders in respect of the plaintiff's claims relating to caveat 5019019V, and my order will be so limited.

6    Mr Iuliano of counsel, who this morning appears for the plaintiff, is unable to tell me of the present status of the rent claim. As it is the policy in the Court now not to leave claims in abeyance, I propose to stand the remaining portion of the proceedings over before me at a suitable time for the plaintiff to inform me whether the proceedings need to be maintained further in respect of prayer 1 in the summons. The plaintiff's solicitor must give notice to the defendant's solicitor of the further directions hearing which I intend to appoint.

7 As the proceedings are not concluded within the meaning of Part 52A r 9 of the SCR, on that basis the costs I shall order would not be payable until the conclusion of the proceedings unless the Court otherwise orders. As this aspect of the matter is complete, I propose to order that the costs payable under orders 1 and 2 be payable forthwith.

8    Accordingly, I make the following orders:

(1) Order that Michael Abdul-Karim indemnify the plaintiff against the costs payable by the plaintiff in respect of his claims in these proceedings relating to caveat 5019019V.
(2) Order that Michael Abdul-Karim pay on the indemnity basis the plaintiff's costs of these proceedings relating to the claim that Michael Abdul-Karim be made responsible for the plaintiff's costs of the proceedings.
(3) Order that the costs payable under orders 1 and 2 be payable forthwith.
(4) The balance of the proceedings is stood over to 9.30 am on 24 August 2000 before me for further directions.

…oOo…

Last Modified: 09/27/2000