Kelly v Jowett

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.