(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.
[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.
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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.