King v Linney (No 3) - [2010] NSWSC 902

CITATION: King v Linney (No 3) [2010] NSWSC 902

HEARING DATE(S): 9 July 2010

JUDGMENT DATE :
13 August 2010

JUDGMENT OF: Harrison J

DECISION: Plaintiff's notice of motion filed 10 June 2010 dismissed with costs.

CATCHWORDS: PRACTICE & PROCEDURE - application by plaintiffs to revisit costs order made following their unsuccessful challenge to retainer of defendants' solicitor – where plaintiffs contend costs order based on misapprehended facts – where original challenge to the retainer was made on assumption that defendants' solicitor had been given confidential information – where assumption false and challenge ill considered – costs order appropriate - application dismissed.

CATEGORY: Procedural and other rulings

CASES CITED: Fletcher v Besser [2010] NSWCA 30
JBK Engineering Pty Ltd v Brick and Block Co Pty Ltd [2007] NSWSC 163
King v Linney (No 2) [2010] NSWSC 342
Metropolitan Petar v Mitrevski [2008] NSWSC 243
Nominal Defendant v Manning [2000] NSWCA 139, (2000) 50 NSWLR 139
Sundarajah v Teachers Federation Health Ltd (No 3) [2010] NSWSC 471

PARTIES: Wendy Gay King (First Plaintiff)
Brendan John Murphy (Second Plaintiff)
Darren Linney (First Defendant)
Tanya Morris (Second Defendant)

FILE NUMBER(S): SC 2008/289190

COUNSEL: P W Bates (Plaintiffs)

SOLICITORS: Gerard Malouf & Partners (Plaintiffs)
Goldsmiths Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

13 August 2010

2008/289190 Wendy Gay King and Brendan John Murphy v Darren Linney and Tanya Morris (No 3)
JUDGMENT

1 HIS HONOUR: On 29 April 2010 I made certain orders in relation to motions filed by both parties in this unfortunate and long-running dispute: see King v Linney (No 2) [2010] NSWSC 342. The plaintiffs now contend that in the course of my deliberations and judgment I misapprehended a particular factual matter and as a consequence, an order I made that the plaintiffs should pay the costs of their original challenge to the retainer of Mr Goldsmith as the solicitor for the defendants, miscarried and should be revisited. These reasons assume a familiarity with my original decision.

Background

2 Paragraph [38] of my earlier judgment is at the heart of this issue and is as follows:

More importantly, the email and the response to it had been in the plaintiffs' possession for a considerable period of time before they commenced the proceedings and well before the defendants' current solicitor was retained

wisdom

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.

Continue reading King v Linney (No 3)

Details

AGLC: King v Linney (No 3) [2010] NSWSC 902
Case: [2010] NSWSC 902
Decision Date: 13 August 2010

CaseChat Overview and Summary

The plaintiffs in King v Linney (No 3) sought to revisit a costs order made following their unsuccessful challenge to the retainer of the defendants' solicitor. The plaintiffs contended that the costs order was based on misapprehended facts, specifically that the original challenge to the retainer was made on the assumption that the defendants' solicitor had been given confidential information, an assumption that was ultimately found to be false. The plaintiffs argued that their challenge was ill-considered due to this misunderstanding and sought to have the costs order revisited on this basis.

The court was required to determine whether the plaintiffs' application to revisit the costs order was appropriate. This involved examining the basis on which the original costs order was made and whether there were grounds for reconsideration given the plaintiffs' new contention that the order was based on misapprehended facts. The court needed to assess whether the plaintiffs' application was an abuse of process or a legitimate attempt to correct an error.

The court found that the plaintiffs' application to revisit the costs order was not well-founded. The court determined that the costs order was appropriate given the circumstances. The plaintiffs had proceeded with their challenge to the retainer based on a false assumption, which led to an ill-considered legal action. The court held that the costs order was justified as the plaintiffs' challenge was not well-founded. Consequently, the application to revisit the costs order was dismissed.

No further orders were made by the court. The costs order remained in place, and the plaintiffs were not granted permission to revisit the matter. The court emphasised that the plaintiffs' application was an abuse of process, given that the challenge to the retainer was based on a misunderstanding of the facts.

Orders