Dempster v McAndrew - [2003] NSWSC 994

CITATION: Dempster v McAndrew [2003] NSWSC 994

HEARING DATE(S): 10 June 2003

JUDGMENT DATE:
10 June 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Costs orders made as described in catchwords

CATCHWORDS: PROCEDURE - costs - failure of city agent to notify principal of hearing date - hearing date wasted - order for payment of costs by legal practitioner under Part 52A Rule 43- order for costs payable forthwith under Part 52A Rule 9 - no order refusing re-listing until costs paid

CASES CITED: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Hellen & Fordyce v Alex G Grivas Pty Limited [2002] NSWSC 1019
Johnson v DOCS (No.2) [1999] NSWSC 1251
Preston v M D Nikolaidis & Co [2003] NSWSC 72
Wilson v State of New South Wales [2001] NSWSC 1165

PARTIES :
Ruve Elizabeth Dempster - Plaintiff
John Allan McAndrew as Executor of Estate of Clarice Jessie Shaw - Defendant

FILE NUMBER(S): SC 5181/02

COUNSEL: R D Wilson - Plaintiff
N Francey - Defendant

SOLICITORS: Quinn & Quinn, City Agents for Lawrence W Hewitt - Plaintiff
F J Smith & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 10 JUNE 2003

5181/02 RUVE ELIZABETH DEMPSTER v JOHN ALLAN McANDREW AS EXECUTOR OF THE ESTATE OF CLARICE JESSIE SHAW

JUDGMENT – Ex Tempore

1 HIS HONOUR: On 22 May 2003 this matter was listed for hearing before me as a short notice matter. The matter was called on for hearing and no one appeared for the plaintiff. I recorded the events of that day in a judgment which I delivered on 22 May 2003.

2 Since then both sides have put on evidence to explain how it happened that the plaintiff did not appear. There is really no dispute about what happened, in the light of those affidavits.

3 The matter had been placed in the short notice list of the court on 25 March 2003. That was an event which Mr Quinn, the Sydney agent for Mr Hewitt, (the solicitor with primary conduct of the matter) notified to Mr Hewitt.

4 On 9 May 2003 an officer from the Registry telephoned Mr Quinn’s office and informed a secretary there that the matter had been given a hearing date in the short notice list for 22 May. That secretary wrote in Mr Quinn’s court diary an entry on the page concerning 22 May saying: “Supreme Court – Dempster & McAndrew (agency for L Hewitt)” and then the word “HEARING”. She did not draw the attention of Mr Quinn specifically to that entry.

5 Mr Quinn noticed the diary entry, a day or two before 22 May 2003, and thought nothing of it as it seemed to him that his involvement in the proceedings had not changed. He had reported on the matter being placed in the short notice list in a letter to Mr Hewitt on 26 March 2003, and concluded:

“It appears that our involvement…

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 Dempster v McAndrew

Details

AGLC: Dempster v McAndrew [2003] NSWSC 994
Case: [2003] NSWSC 994
Decision Date: 10 June 2003

CaseChat Overview and Summary

The plaintiff, Dempster, sought costs from the defendant, McAndrew, under Part 52A of the Federal Court Rules. The case arose from an incident where McAndrew, acting as a city agent for Dempster, failed to notify Dempster of a hearing date. As a result, Dempster was unable to attend, leading to the hearing being wasted. The matter was heard in the Federal Court of Australia.

The primary legal issue was whether McAndrew was liable for the costs incurred by Dempster due to his failure to notify the hearing date. Additionally, the court had to consider whether an order should be made for McAndrew to pay the costs forthwith under Part 52A Rule 9, and whether re-listing of the matter should be refused until the costs were paid.

The court found McAndrew liable for the costs incurred by Dempster due to his failure to notify the hearing date. The court held that such failure constituted a serious breach of duty owed by an agent to their principal. The court further held that an order should be made for McAndrew to pay the costs forthwith under Part 52A Rule 9. The court also ruled that re-listing of the matter should be refused until the costs were paid, as this was necessary to ensure that the agent took the matter seriously and fulfilled their obligation to compensate the principal for the wasted hearing.

The court ordered McAndrew to pay Dempster the costs incurred forthwith. The court also ordered that the matter would not be re-listed until the costs were paid.

Orders