Kelly v Jowett [2009] NSWCA 278 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
7 August 2009
JUDGMENT DATE:
4 September 2009
JUDGMENT OF:
Beazley JA at 1; McColl JA at 2; Barrett J at 95
DECISION:
In addition to orders 1 and 2 made by consent in the Short Minutes of Order dated 15 December 2008: 1. Join Robert Stanley Bryden and Bandeli Hagipantelis as respondents to the appeal. 2. Set aside orders 3 and 4 made by McLaughlin As-J on 29 May 2008. 3. In place of orders 3 and 4 order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the conduct of the Equity Proceedings up to and including 29 May 2008 on an indemnity basis. 4. Order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the stay application before Brereton J on an indemnity basis. 5. Order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the substantive appeal, including his notices of motion of 15 October 2008 and 19 May 2008 and the summons seeking leave to appeal on an indemnity basis. 6. Order that all the above costs orders be satisfied by Robert Stanley Bryden and Bandeli Hagipantelis paying the costs directly to Kenneth Rowland Jowett or his legal representatives. 7. Order that all the above costs orders be payable forthwith. 8. Dismiss the summons seeking leave to appeal.
CATCHWORDS:
COSTS – wasted costs jurisdiction – defence of Family Provision Act 1982 (NSW) proceedings left to employed solicitor – delinquency in their handling – whether principals personally liable for wasted costs incurred by plaintiff – Uniform Civil Procedure Rules 2005 (NSW) 42.3(g) and Civil Procedure Act 2005 (NSW), s 99 - LEGAL PRACTITIONERS – duties and liabilities – duty to the Court, to their client and to the other party to proceedings - LEGAL PRACTITIONERS – retainer with clients
[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
Kelly v Jowett [2009] NSWCA 278
Case
[2009] NSWCA 278
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for wasted costs against two solicitors, Robert Stanley Bryden and Bandeli Hagipantelis, who had acted for the defendant in Family Provision Act 1982 (NSW) proceedings. The plaintiff sought to hold the solicitors personally liable for costs incurred due to their alleged delinquency in handling the defence of those proceedings. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the solicitors, as principals of the firm that represented the defendant, were personally liable for wasted costs under rule 42.3(g) of the Uniform Civil Procedure Rules 2005 (NSW) and section 99 of the Civil Procedure Act 2005 (NSW), and whether their conduct warranted such an order. This involved considering the duties owed by legal practitioners to the court, their clients, and other parties, as well as the nature of their retainer.
The Court of Appeal found that the solicitors had been delinquent in their handling of the Family Provision Act proceedings. It was held that their conduct had caused the plaintiff to incur costs that were wasted. The court applied the principles governing wasted costs orders, which require a demonstration of misconduct or a failure to exercise reasonable care, skill, and diligence. The court determined that the solicitors' actions fell within the scope of conduct that could attract personal liability for wasted costs.
The Court of Appeal made orders joining Robert Stanley Bryden and Bandeli Hagipantelis as respondents to the appeal and setting aside previous orders. In their place, the court ordered that Bryden and Hagipantelis pay the plaintiff's costs of the Equity Proceedings, the stay application, and the substantive appeal on an indemnity basis, payable directly by them to the plaintiff or their legal representatives forthwith. The summons seeking leave to appeal was dismissed.
Orders
Orders of the court
In addition to orders 1 and 2 made by consent in the Short Minutes of Order dated 15 December 2008: 1. Join Robert Stanley Bryden and Bandeli Hagipantelis as respondents to the appeal. 2. Set aside orders 3 and 4 made by McLaughlin As-J on 29 May 2008. 3. In place of orders 3 and 4 order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the conduct of the Equity Proceedings up to and including 29 May 2008 on an indemnity basis. 4. Order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the stay application before Brereton J on an indemnity basis. 5. Order Robert Stanley Bryden and Bandeli Hagipantelis to pay Kenneth Rowland Jowett’s costs of the substantive appeal, including his notices of motion of 15 October 2008 and 19 May 2008 and the summons seeking leave to appeal on an indemnity basis. 6. Order that all the above costs orders be satisfied by Robert Stanley Bryden and Bandeli Hagipantelis paying the costs directly to Kenneth Rowland Jowett or his legal representatives. 7. Order that all the above costs orders be payable forthwith. 8. Dismiss the summons seeking leave to appeal.