Hudgson v Endrust (Australia) Pty Ltd

[1986] FCA 190

Re: JEFFREY NORMAN HUDGSON and REX IAN HALLYBURTON trading as NOOSA FUN WAGON
4 x 4 HIRE
And: ENDRUST (AUSTRALIA) PTY. LTD.; KERRY WILLIAM FITZGERALD trading as ENRUST
(BRISBANE)
No: QLD G95 of 1983
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Costs - solicitor engaged by first of two respondents to act for both - order in favour of second respondent - whether deemed retainer - legal fiction.

Federal Court Rules, Order 62.

HEARING

BRISBANE

#DATE 6:5:1986

COUNSEL: for the applicants Mr. C. Newton instructed by Ryan and Archer Coutts

COUNSEL: for the respondents Mr. A. Philp instructed by Feez Ruthning

ORDER

The reconsideration of the relevant bill of costs be remitted to the taxing officer to be dealt with in the light of these reasons.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This is an application to review a decision of the taxing officer on reconsideration of objections to a bill of costs. For simplicity I shall call the parties by the names appropriate to the principal proceedings. The application is by the second respondent in those proceedings, which sought relief against both respondents under s.52 of the Trade Practices Act 1974.

1. In the principal proceedings, on 27 August 1984, an order was made giving the applicants liberty to discontinue against the second respondent and ordering that the applicants pay his costs, to be taxed.

2. The dispute is as to whether there is any liability in the second respondent, in whose favour this order for costs was made, to pay the solicitor who is on the record in the principal proceedings as acting for both respondents.

3. Being in some doubt about that question, the taxing officer asked the second respondent for some evidence to be placed before him and that request produced an affidavit which did not clarify the matter much, if at all. On the application for review before me, the second respondent sought, and was given, leave to adduce further evidence. The facts are not in dispute, but the legal inference to be drawn from them is.

4. The principal proceedings were brought against a Sydney company as first respondent, and against a natural person resident in Brisbane as second respondent. The first respondent engaged its Sydney solicitors, Messrs. Westgarth Baldick, to contest the proceedings and they in turn instructed Messrs. Feez Ruthning & Co. of Brisbane to file an appearance on behalf of both respondents. Subsequently, the second respondent was, from time to time, in touch with Messrs. Feez Ruthning & Co. about the matter, but there is no reason to think that any of those contacts affect the present question.

5. The partner of Messrs. Westgarth Baldick who is handling the matter has made an affidavit deposing to the fact that his firm has rendered all accounts to the first respondent and none to the second respondent. There is evidence that a deed was recently made between…