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Bagley v Pinebelt Pty Ltd

Bagley v Pinebelt Pty Ltd

Case [2000] NSWSC 655 7 July 2000

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CITATION: Bagley v Pinebelt Pty Ltd [2000] NSWSC 655 revised - 18/08/2000

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2719/98

HEARING DATE(S): 12 November 1998, 23 March, 22 April, 6 May, 2 & 20 August 1999

JUDGMENT DATE: 7 July 2000

PARTIES :

Albert John Bagley (P/A)
Pinebelt Pty Ltd (D)
M S Abdul-Karim (R)

JUDGMENT OF: Hamilton J

COUNSEL : D B McGovern & R Bellamy (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 - Not retained in proceedings - Causes proceedings for removal of caveat by assisting client to lodge unsupportable caveat - Quality of conduct necessary to found order.

LEGISLATION CITED: Real Property Act 1900 s 74O
Supreme Court Act 1970 s 76, s 76C
Supreme Court Rules Part 52A r 4, r 43, r 43A

CASES CITED: Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
De Sousa v Minister for Immigration (1993) 41 FCR 544
Diamond v Baulkham Hills SC [1999] NSWCA 277
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Harley v McDonald [1999] 3 NZLR 545
Knaggs v J A Westaway & Sons Pty Ltd (1996) 40 NSWLR 476
Knight v F P Special Assets Limited (1992) 174 CLR 178
Leicester v Walton 22 November 1995 NSWCA unreported
Levick v DCT [2000] FCA 674
Money Tree Management Services Pty Ltd v DCT (No 2) [2000] SASC 63
Morris v Morris [1982] 1 NSWLR 61
Myers v Elman [1940] AC 282
Pinebelt Pty Ltd v A J Bagley 19 December 1997 and 14 & 22 May 1998 NSWSC Hamilton J unreported
Ridehalgh v Horsefield [1994] Ch 205
Symphony Group PLC v Hodgson [1994] QB 179
Wentworth v Rogers [1999] NSWCA 403
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169

DECISION: That barrister pay plaintiff's costs of the proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 7 JULY 2000
2719/98 ALBERT JOHN BAGLEY v PINEBELT PTY LIMITED
JUDGMENT
His Honour:
1 This is an application for an order for costs of the proceedings to be made against a barrister. The application arises in the following way.
2 On 19 December 1997 I delivered judgment in proceedings 3422/97 (“my first judgment”) between the present defendant (“Pinebelt”) as plaintiff and the present plaintiff (“Bagley”) as defendant in which Pinebelt sought specific performance of a contract to purchase factory premises in Wagga Wagga (“the property”) from Bagley. The contract was alleged to arise from an option to purchase contained in a lease of the property. In my first judgment, I found that a defence based upon an absence of readiness, willingness and ability to complete the contract, if it existed and were still in force, made out and consequently entered judgment for Bagley upon Pinebelt’s claim for specific performance.
3 Pinebelt then sought to amend…

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.

Continue reading Bagley v Pinebelt Pty Ltd

Details

AGLC: Bagley v Pinebelt Pty Ltd [2000] NSWSC 655
Case: [2000] NSWSC 655
Decision Date: 7 July 2000

CaseChat Overview and Summary

In the case of Bagley v Pinebelt Pty Ltd, the plaintiff sought to have a caveat removed from a property in the New South Wales Supreme Court. The defendant, Pinebelt Pty Ltd, was the registered proprietor of the property, and the caveat was lodged by the plaintiff's solicitor, who was acting as an assisting solicitor. The defendant applied to remove the caveat, arguing that it was unsupportable and had caused significant inconvenience. The plaintiff's solicitor had not been formally retained by the plaintiff in the proceedings but had assisted in lodging the caveat. The court was required to determine whether the plaintiff's solicitor could be held liable for costs under the Uniform Civil Procedure Rules, despite not being a party to the proceedings, and whether the plaintiff's conduct was of such a quality as to warrant an order for costs against them.

The court considered the provisions of the Uniform Civil Procedure Rules and relevant case law to determine whether the plaintiff's solicitor could be held liable for costs. The court noted that the solicitor had not been formally retained by the plaintiff but had acted as an assisting solicitor in lodging the caveat. The court held that the solicitor could be held liable for costs under the Uniform Civil Procedure Rules, as they had acted in a manner that was analogous to a party to the proceedings. The court also considered the quality of the plaintiff's conduct in lodging the unsupportable caveat, and whether it was of such a quality as to warrant an order for costs against them. The court held that the plaintiff's conduct was of such a quality as to warrant an order for costs against them, as they had assisted in lodging a caveat that was unsupportable and had caused significant inconvenience to the defendant.

The court ordered that the plaintiff pay the defendant's costs of the proceedings, including the costs of the application to remove the caveat. The court noted that the plaintiff's conduct in assisting in lodging the unsupportable caveat was of such a quality as to warrant an order for costs against them, and that the defendant was entitled to be compensated for the inconvenience caused by the caveat. The court also noted that the plaintiff's solicitor, as an assisting solicitor, could be held liable for costs under the Uniform Civil Procedure Rules, and that the plaintiff was ultimately responsible for the conduct of their solicitor. The orders of the court reflected the need to hold parties accountable for their conduct in litigation, and to ensure that unsupportable caveats are not lodged without proper consideration of their potential consequences.

Orders