Lindsay-Owen v HWL Ebsworth Lawyers

[2021] NSWSC 645

Supreme Court

New South Wales

Medium Neutral Citation:	Lindsay-Owen v HWL Ebsworth Lawyers [2021] NSWSC 645
Hearing dates:	7 June 2021
Date of orders:	7 June 2021
Decision date:	07 June 2021
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	See [9]
Catchwords:	COSTS – where plaintiffs seek order for costs in respect of defendants’ failure to serve valuation evidence by requisite date – where defendants unable to offer satisfactory explanation for default – defendants to pay costs
Category:	Costs
Parties:	Gregory Hamilton Willoughby Lindsay-Owen (First Plaintiff) Dairycorp Pty Limited (Second Plaintiff) Martin Downing & Ors Trading as HWL Ebsworth Lawyers (First to One Hundred and Sixth Defendants)
Representation:	Counsel: P Afshar (Plaintiffs) T Faulkner SC (Defendants) Solicitors: Henry Davis York (Plaintiffs) Gilchrist Connell (Defendants)
File Number(s):	2016/85879
Publication restriction:	Nil

Judgment

1. HIS HONOUR: These proceedings are listed for hearing commencing in March next year. The plaintiffs sue for damages with respect to an alleged breach of retainer by the defendants who acted for them in the acquisition of a parcel of land in Bridge Street, Schofields. The plaintiffs also allege that the defendants were negligent with respect to advice provided concerning the acquisition of a joint venture partner with the financial ability, experience and skills to assist the first plaintiff to develop the land and relieve it of its debts and secured obligations. That summary is not intended to be more than a general outline of the nature of the litigation.

2. The plaintiffs claim damages calculated to be as much as $130 million. The evidence marshalled on both sides relating to that loss concerns, among other things, the valuation of the land and the losses said to have been occasioned to the plaintiffs by the loss of the opportunity to proceed with identified joint venture partners. Other losses are also claimed.

3. The matter came before me on 14 May 2021 at the request of the plaintiffs who were concerned that the defendants were, or might soon become, in default of orders earlier made by me on 26 March 2021 for the service of expert reports in the fields of valuation and quantity surveying. The relevant order made by me on that day, varying an earlier order made on 4 November 2020, was that the defendants serve any valuation (valuer and quantity surveyor) expert evidence on or before 12 April 2021. I had also ordered on 26 March 2021 that the defendants serve any forensic accounting expert evidence on or before 4 June 2021. I was informed on 14 May 2021 that the defendants did not intend to serve any evidence from a quantity surveyor.

4. In short, the plaintiffs listed the proceedings to clarify the position with respect to the defendants’ failure to serve valuation evidence by 12 April 2021 as required. That evidence has now been served.

5. The plaintiffs seek an order for costs. Indeed, they ask that the costs incurred by them for the appearances and associated preparation on 4 November 2020, 26 March 2021, 14 May 2021 and today be paid on a gross sum basis forthwith.

6. The orders made on 4 November 2020 were made by consent. On 26 March 2021 I specifically reserved the costs of that day to the trial judge, noting that the plaintiffs will wish to rely in support of an application for costs upon the matters deposed to by Katherine Merrick in her affidavit of 25 March 2021. I am not presently disposed to vary that order.

7. The matter was properly listed before me by the plaintiffs on 14 May 2021. The defendants were in default and were unable to offer a satisfactory explanation that excused that default. Indeed, the defendants by their senior counsel specifically apologised for their delinquency. The defendants should pay the costs of and incidental to the appearance on that day.

8. The requirement for the proceedings to come before me today was generated by my order made on 14 May 2021 listing the matter for argument “concerning the costs” of that day. Having regard to my conclusion that the defendants should pay the costs of 14 May 2021, the costs of today should follow the event of the plaintiffs’ success on that argument.

9. I will therefore make the following orders:

1. Note that the defendants have now served all of the expert evidence on which they intend to rely at trial.

2. Confirm the hearing commencing on 7 March 2022.

3. Direct that the matter otherwise proceed in anticipation of the hearing in accordance with the practice note.

4. Grant liberty to all parties to apply on 48 hours’ notice.

5. Order the defendants to pay the costs of 14 May 2021 and 7 June 2021.

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Decision last updated: 07 June 2021