Douglas v Madden (No 4) - [2010] NSWSC 904

CITATION: Douglas & Anor v Madden & Ors (No 4) [2010] NSWSC 904
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 July 2010

JUDGMENT DATE :
16 August 2010

JUDGMENT OF: Schmidt J

DECISION: Plaintiffs to bear defendants' costs of the motion on an indemnity basis, payable forthwith.

CATCHWORDS: PROCEDURE - costs - departing from the general rule - delay - misconduct - order for costs on indemnity basis payable forthwith

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: A & N Holdings NSW Pty Ltd v Andell Pty Ltd & Ors [2006] NSWSC 55
Douglas & Anor v Madden & Ors [2009] NSWSC 47
Douglas & Anor v Madden & Ors (No 2) [2009] NSWSC 194
Douglas & Anor v Madden & Ors (No 3) [2009] NSWSC 412
Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1
Gattellari v Meagher [1999] NSWSC 1279
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Pestano & Anor v Madden & Ors [2007] NSWSC 545
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

PARTIES: Troy Douglas (formerly known as Douglas Pestano) - First Plaintiff
Morgan Price Limited - Second Plaintiff
Phillip MacDonald Madden & Julia Anne Madden t/as Maddens Commercial Lawyers and/or Maddens Business & Property Lawyers - First Defendant
Maddens Lawyers Business & Property Pty Limited - Second Defendant
Andrew Tennent Sutherland, John Richard Cox, Christopher Hugh McCaffery, Timothy John Eakin, Michael John Patrick White & Michael Leo Stafford t/as Eakin McCaffrey Cox - Third Defendant

FILE NUMBER(S): SC 2005/20435

COUNSEL: Mr MJ Jenkins - Plaintiffs
Mr I Griscti - Defendants

SOLICITORS: Bryan Gorman & Co - Plaintiffs
HWL Ebsworth Lawyers - First and Second Defendants
Middletons - Third Defendant

- 8 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PROFESSIONAL NEGLIGENCE LIST

SCHMIDT J

MONDAY, 16 AUGUST 2010

2005/20435 TROY DOUGLAS (FORMERLY KNOWN AS DOUGLAS PESTANO) AND ANOR v PHILLIP MACDONALD MADDEN t/as MADDENS COMMERICAL LAWYERS and/or MADDENS BUSINESS & PROPERTY LAWEYRS

JUDGMENT

1 HER HONOUR: By motion filed in May 2010, the defendants sought orders pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005, dismissing the proceedings for want of prosecution, together with an order for costs.

2 The proceedings concern alleged professional negligence. They have a protracted history. They were commenced in December 2005, but were the subject of ongoing delay by the plaintiffs, in breach of the Court’s repeated orders. In February 2009, I made self executing orders requiring the plaintiffs to take certain outstanding steps, particularly the filing of certain expert evidence, on the basis that if they were not taken, the proceedings were dismissed with costs (see Douglas & Anor v Madden & Ors [2009] NSWSC 47).

3 The plaintiffs did not comply with those orders. In March 2009, I…

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 Douglas v Madden (No 4)

Details

AGLC: Douglas v Madden (No 4) [2010] NSWSC 904
Case: [2010] NSWSC 904
Decision Date: 16 August 2010

CaseChat Overview and Summary

The case involved a dispute between Douglas and Madden, with the proceedings focusing on issues of costs and delays. The matter was heard in the Supreme Court of New South Wales. The appellant, Douglas, sought to challenge the refusal of the respondent, Madden, to pay costs on an indemnity basis, arguing that the refusal was unjust and that the general rule of costs should be departed from due to the respondent's delay and misconduct.

The primary legal issue was whether the court should deviate from the general rule of costs and order the respondent to pay costs on an indemnity basis, particularly given the respondent's delay and misconduct. The court considered whether such deviation was warranted under the circumstances and if the delay and misconduct were significant enough to justify an exception to the general rule.

The court determined that the respondent's delay and misconduct were substantial enough to warrant a departure from the general rule. The respondent had caused significant delays and acted in a manner that was prejudicial to the proceedings. As such, the court exercised its discretion to order the respondent to pay costs on an indemnity basis, payable forthwith. This decision was based on the principle that the general rule of costs should not be applied rigidly if doing so would result in an unjust outcome. The court emphasised that the respondent's actions had a detrimental impact on the proceedings, justifying the exceptional measure of ordering costs on an indemnity basis.

Orders