Court of Appeal
New South Wales
Case Title: Hollier v Sutcliffe Medium Neutral Citation: [2011] NSWCA 24 Hearing Date(s): 14 February 2011 Decision Date: 14 February 2011 Jurisdiction: Before: Allsop P at 1
Decision: 1. Pursuant to Pt 12 r 12.7 of the Uniform Civil Procedure Rules dismiss the appeal with costs.
2. Refuse orders sought in paras 2(b) and 3 of the Further Amended Notice of Motion filed in court on 14 February 2011.
3. As to the costs of the Further Amended Notice of Motion as between the applicant on the motion (respondent to the appeal) and CMC Lawyers:
(a) the applicant on the motion pay CMC Lawyers' costs of briefing Counsel to appear on 14 February 2011;
(b) otherwise no order as to costs.
4. The applicant on the motion provide to the appellant a copy of the orders made on the motion together with a copy of my reasons within 7 days of receipt of the settled form of orders and reasons.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: APPEAL - civil - application to dismiss - whether appeal should be dismissed for want of despatch
COSTS - against non parties - whether legal practitioners liable for unnecessary costs - whether serious neglect, serious incompetence or serious misconduct
Legislation Cited: Civil Procedure Act 2005 (NSW) s 99(1)
Cases Cited: Texts Cited: Category: Principal judgment Parties: Samantha Hollier (Appellant)
Dr Rachael Sutcliffe (Respondent)Representation - Counsel: Counsel:
No appearance (Appellant)
Mr G Gregg (Respondent)
Ms Dulhunty (CMC Lawyers)- Solicitors: Solicitors:
CMC Lawyers (Appellant)
Sparke Helmore Lawyers (Respondent)File number(s): 2010/104240 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: R A Hulme J - Date of Decision: 23 April 2010 - Citation: Hollier v Sutcliffe [2010] NSWSC 279 - Court File Number(s) 20002/08 Publication Restriction:
Judgment
ALLSOP P: This is a Further Amended Notice of Motion filed in court today seeking orders against the appellant and the appellant's former solicitors. The amendment in court today affects only the appellant's former solicitors. The appeal was filed on 22 July 2010 against orders made by the Supreme Court on 23 April 2010 and 10 May 2010 in which there was judgment for the defendant in a professional negligence suit.
On 28 April 2010, the appellant filed a notice of intention to appeal giving the appellant the time under the Uniform Civil Procedure Rules 2005 (NSW) until July for the filing of a notice of appeal. By 2 September 2010, being a time six weeks since the notice of appeal was filed, there was a failure to comply with the Rules to file written submissions…
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- AGLC
- Hollier v Sutcliffe [2011] NSWCA 24
- Case
- [2011] NSWCA 24
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the appeal should be dismissed due to a lack of timely progress. Furthermore, it had to assess the circumstances under which legal practitioners might be held responsible for costs incurred due to their conduct, focusing on the threshold of serious neglect, incompetence, or misconduct.
Allsop P ordered the dismissal of the appeal with costs, pursuant to Pt 12 r 12.7 of the Uniform Civil Procedure Rules. The court also refused certain orders sought in a further amended notice of motion. Regarding the costs of that motion as between the applicant on the motion (who was the respondent to the appeal) and CMC Lawyers, the applicant was ordered to pay CMC Lawyers' costs of briefing counsel for a specific court appearance, but otherwise, there were no orders as to costs. The applicant was directed to provide the appellant with a copy of the orders and reasons within seven days of receiving the settled form of orders and reasons.
Orders
Orders of the court
1. Pursuant to Pt 12 r 12.7 of the Uniform Civil Procedure Rules dismiss the appeal with costs.
2. Refuse orders sought in paras 2(b) and 3 of the Further Amended Notice of Motion filed in court on 14 February 2011.
3. As to the costs of the Further Amended Notice of Motion as between the applicant on the motion (respondent to the appeal) and CMC Lawyers:
(a) the applicant on the motion pay CMC Lawyers' costs of briefing Counsel to appear on 14 February 2011;
(b) otherwise no order as to costs.
4. The applicant on the motion provide to the appellant a copy of the orders made on the motion together with a copy of my reasons within 7 days of receipt of the settled form of orders and reasons.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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