13 April 2006 (written submissions closed 29 May 2006)
JUDGMENT DATE :
19 July 2006
JURISDICTION:
Equity Division
JUDGMENT OF:
Brereton J
DECISION:
Solicitor/respondent to pay plaintiffs’ costs of motion for his removal. Defendants/former clients to pay solicitor’s costs, including the costs which he is liable to pay plaintiffs.
CATCHWORDS:
LEGAL PRACTITIONERS – SOLICITORS – COSTS – where solicitor restrained on application of plaintiffs from continuing to act for defendants – where solicitor resisted application at request and on instructions from defendants/former clients – where application had sought costs only against solicitor – whether solicitor was amenable to costs order – whether defendants were amenable to costs order – where defendants and solicitor appeared by common counsel to resist motion – whether solicitor entitled to be indemnified by former clients in respect of costs liability – held, solicitor to pay plaintiffs’ costs of motion for his removal, and defendants/former clients to pay solicitor’s costs, including the costs which he is liable to pay plaintiffs.
Peter Kallinicos (first plaintiff) Chepan Pty Limited (second plaintiff) Peter Anthony Hunt (first defendant) Dibsenta Pty Ltd (second defendant) Randall Pty Ltd (third defendant) P & K Corporation Pty Ltd (fourth defendant) Rowntree Properties (fifth defendant) Patrick John Moloney (respondent)
FILE NUMBER(S):
SC 1033/03
COUNSEL:
G K Burton SC (plaintiffs) Mr D Creais (defendants) (sol) J M Ireland QC (respondent)
SOLICITORS:
Konstan Lawyers (plaintiffs) Bartier Perry (defendants) Moloney Lawyers (respondent)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
BRERETON J
Wednesday, 19 July 2006
1033/03 Peter Kallinicos and Anor v Peter Anthony Hunt and ors
JUDGMENT
1 HIS HONOUR: On 22 November 2005, I gave judgment and made orders that Patrick Moloney, who had until then acted as solicitor for the defendants in the proceedings, cease to so act, and that Mr Moloney pay the plaintiffs’ costs of the application [Kallinicos v Hunt [2005] NSWSC 1181]. On the question of costs, I said (at [96]):
96 As the jurisdiction invoked involves the court’s supervisory jurisdiction over its solicitors, the appropriate order…
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.
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AGLC
Kallinicos v Hunt [2006] NSWSC 723
Case
[2006] NSWSC 723
Decision Date
CaseChat Overview and Summary
In the matter of Kallinicos v Hunt, the dispute before the court involved the costs incurred in relation to a solicitor's removal from representing the defendants. The plaintiffs sought the removal of the solicitor from acting for the defendants, and the application was resisted by the solicitor at the request and instruction of the defendants, who were also the solicitor's former clients. The court was required to determine whether the solicitor could be ordered to pay costs to the plaintiffs and whether the defendants were also liable for costs in relation to the solicitor's appearance and defence in the matter.
The court considered the principles governing costs in legal proceedings and the circumstances of the solicitor's involvement. It concluded that the solicitor was amenable to a costs order in relation to the plaintiffs' application for his removal, as the solicitor had chosen to resist the application despite being instructed to do so by his former clients. The court also determined that the defendants, being the solicitor's former clients, were liable for the costs incurred by the solicitor in defending the application, as they had instructed him to resist the plaintiffs' application. Given that the defendants and the solicitor appeared by common counsel to resist the motion, the court found that the solicitor was entitled to be indemnified by his former clients for any costs liability he incurred.
Ultimately, the court ordered the solicitor to pay the plaintiffs' costs of the motion for his removal, and the defendants were ordered to pay the solicitor's costs, including those that he was liable to pay the plaintiffs. This decision underscored the importance of the solicitor's role in the proceedings and the potential financial implications for both the solicitor and their former clients when a dispute over legal representation arises.