E1 v E2; E Pty Limited v E2

Case [2023] NSWDC 411


District Court


New South Wales

Medium Neutral Citation: E1 v E2; E Pty Limited v E2 [2023] NSWDC 411
Hearing dates: 23 May, 13 June and 8 August 2023
Date of orders: 06 October 2023
Decision date: 06 October 2023
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment.

(2) Application by defendant’s pro bono legal representative for costs dismissed.

(3) Each party to pay their own costs of this application and of the proceedings.

Catchwords:

COSTS – defendant represented at the submissions stage of proceedings by pro bono lawyer – no orders sought or made at any stage for a referral under UCPR rr 7.36 and 7.41 - pro bono lawyer seeks a gross sum costs order for her fees after the defendant is successful – whether referral under UCPR r 7.41 should be made nunc pro tunc – whether, in the absence of such an order and/or a written costs agreement, the defendant’s pro bono lawyer is entitled to payment of costs – the indemnity principle – application for costs refused.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8

Family Law Act 1975 (Cth)

Federal Court Rules 1979 (Cth) r 4.19; Order 80 (repealed)

Legal Aid Commission Act 1979 (NSW)

Legal Profession Uniform Law 2014 (NSW), ss 174, 175, 178, 181, 185

Uniform Civil Procedure Rules 2005 (NSW), rr 7.18, 7.33 – 7.42, 42.1

Cases Cited:

1465778 Ontario Inc et al v 1122077 Ontario Ltd et al (2006) 275 DLR (4th) 321

AT Air Group Pty Ltd v Dieter Siewert [2013] NSWSC 1993

Bahamad v Wong [2020] NSWSC 991

Bazzi v Dutton [2022] FCAFC 84

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA 126

Capilano Honey Ltd v Mulvany [2017] NSWSC 833

Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109

Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Enterprise Finance Solutions Pty Ltd v Ciszek [2014] NSWDC 314

In the matter of Idylic Solutions Pty Ltd and ors - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 581

In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280

Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599

King v King & Ors [2012] QCA 81

Larter v Hazzard [2022] NSWCA 238

Larter v Hazzard (No 3) [2021] NSWSC 1595

LFDB v SM (No 4) [2017] FCA 753

London Scottish Benefit Society v Chorley [1881-5] All ER Rep 1111; (1884) 13 QBD 872

Malkinson v Trim [2002] All ER (D) 66 (Sep); [2003] 2 All ER 356; [2003] 1 WLR 463; [2002] EWCA Civ 1273

Matsen v Matsen [2008] NSWSC 226

McCullum v Ifield [1969] 2 NSWR 329

Mourik v Von Marburg

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Details
AGLC
E1 v E2; E Pty Limited v E2 [2023] NSWDC 411
Case
[2023] NSWDC 411
Decision Date

CaseChat Overview and Summary

The parties involved in the case were E1, E Pty Limited, and E2. The dispute related to a claim brought by E1 and E Pty Limited against E2. The court handling this matter was the Supreme Court of New South Wales. The central issue before the court was whether the defendant, E2, who was represented by a pro bono lawyer at the submissions stage, could be held liable for the payment of the lawyer's fees following a successful outcome for E2. This raised questions about the application of the Uniform Civil Procedure Rules and the indemnity principle in relation to costs.

The court had to determine if a referral under UCPR rules 7.36 and 7.41 should be made nunc pro tunc, meaning after the event, and whether the pro bono lawyer was entitled to payment of her fees in the absence of such an order or a written costs agreement. The court considered the practicalities and fairness of the situation, ultimately concluding that there was no basis to make a nunc pro tunc referral. Additionally, the court held that without a written costs agreement, the indemnity principle did not apply, and thus, the pro bono lawyer was not entitled to payment for her fees.

The court dismissed the application for costs by the defendant's pro bono legal representative. It was ordered that the names of the parties be suppressed under the Court Suppression and Non-Publication Orders Act 2010 (NSW), with pseudonyms used in the judgment. Each party was also ordered to bear their own costs for both the application and the proceedings.

Orders

Orders of the court

(1) Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment.

(2) Application by defendant’s pro bono legal representative for costs dismissed.

(3) Each party to pay their own costs of this application and of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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