Laughton v Magarey

[2007] SASC 328

Supreme Court of South Australia

(Civil: Application)

LAUGHTON v MAGAREY & ORS

[2007] SASC 328

Judgment of The Honourable Justice Debelle (ex tempore)

30 August 2007

PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS

Court fees – application by defendant for remission of filing fee payable on filing of third party notice – defendants have incurred substantial financial burdens – whether there is proper reason to remit fees – application granted. 

Supreme Court Act 1935 s 130(2), referred to.

LAUGHTON v MAGAREY & ORS
[2007] SASC 328

Civil

1. DEBELLE J.        This is one of four actions which have been instituted claiming damages against the defendant firm of solicitors. The actions are being managed together.  They are actions 663, 696, 697 and 698 of 2007.  In each action, the plaintiff as a former client of the defendant firm seeks to recover damages for moneys lost in consequence of fraudulent misappropriations by an employee of the firm.  The defendants have filed a third party notice in the action 663 of 2007. The third party notice is addressed to the professional indemnity insurer of the defendants. A notice in like terms will be filed in each of the other actions.

2. The defendants in the actions 696, 697 and 698 of 2007 apply for an order remitting the fee payable on the filing of a third party notice in each of those separate actions. The application is grounded on the following facts. 

3. The defendants have already incurred substantial financial loss in consequence of a defalcation in consequence of fraudulent misappropriation by a clerk in the employ of the firm which has caused substantial defalcations to the trust accounts. Three individual members of the firm Magarey Farlam Lawyers have already paid the sum of $93,000 to clients of the firm in the belief that that sum was sufficient to remedy the defalcations. Events proved them to be mistaken in that belief. The defendants have also had to incur substantial costs in other proceedings concerning the question where the burden of the losses caused by the defalcations should fall in respect to individual clients. They had to bear their own costs of those proceedings.

4. Section 130(2) of the Supreme Court Act1935, allows the court to remit the fees for proper reason. Given the financial burdens that the defendants have already incurred through what appears to have been no fault of their own and given that each notice is in identical terms, this is an appropriate case in which to remit the fee.

5. I immediately add that this is not a clear case. It might be said that, if successful, the defendants will, in any event, be able to recover these fees. However, there are questions as to the extent of the indemnity.

6. In all the circumstances and not without some hesitation, I grant the application