CITATION: Mannix v Loumbos Pty Ltd [2000] NSWCA 32 revised - 6/03/2000 FILE NUMBER(S): CA 040422/99 HEARING DATE(S): 28/02/2000 JUDGMENT DATE:
28 February 2000PARTIES :
John Joseph Mannix & Anor v Loumbos Pty LimitedJUDGMENT OF: Priestley JA at 21&23; Fitzgerald JA at 22; Foster AJA at 1-20
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :5149/97 LOWER COURT
JUDICIAL OFFICER :McLoughlin ADCJ
COUNSEL: A.M. Colefax for the appellants.
N/A for the respondent.SOLICITORS: Blake Dawson Waldron for the appellants.
Eakin McCaffery Cox for the respondent.CATCHWORDS: Appeal in respect of order for costs - In breach of retainer - Rent review clause. CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 DECISION: See para 20.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
No. 040422/99
MONDAY, 28 FEBRUARY 2000
PRIESTLEY JA
FITZGERALD JA
FOSTER AJA
JOHN JOSEPH MANNIX & 1 ORS v LOUMBOS PTY LIMITED
JUDGMENT
1 FOSTER AJA: This is an application for leave to appeal brought by the claimants John Joseph Mannix and Pamela Enright against the opponents Loumbos Pty Ltd, ("the company"), in respect of an order for costs made by McLachlan ADCJ on 14 May 1999 in proceedings in the District Court of New South Wales Civil jurisdiction. In those proceedings the claimants, who are solicitors, were the successful defendants. The company, the plaintiff in the proceedings, had asserted that they were in breach of their retainer with it and had been guilty of negligence in relation to their acting for it in respect of a lease of premises to be occupied by it.
The gist of the claim, as set out in his Honour's careful judgment, was:
"They failed to advise the solicitors for the lessor that the plaintiff would not agree to the rent review clauses being maintained in the lease. They failed to advise the plaintiff and obtain the plaintiff's instructions in relation to the rent review clause and represented to the plaintiffs the lease to be executed contained terms that complied with the plaintiff's instructions in relation to the rent review clause."
2 It was an essential component of the complaint that the plaintiff's instructions to the solicitors were that it would not enter into any lease unless the rent review clause was one restricted in its terms to increases limited to the maximum of the Consumer Price Index. The lease into which it entered provided for a 21 per cent increase in rent every two years. It was the company's case that it was not prepared to agree to such a term and only did so because of the negligence of the claimants.
3 It was the claimant's case that the company, through its directors, Mr and Mrs Loumbos had been made fully aware that the lessor was adamant that it would not enter into the lease unless it contained the 21 per cent increase clause and that the company, through Mr Loumbos, had finally agreed to a clause to…
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Details
- AGLC
- Mannix v Loumbos [2000] NSWCA 32
- Case
- [2000] NSWCA 32
- Decision Date
CaseChat Overview and Summary
The appeal concerned an order for costs made in the District Court of New South Wales. The dispute arose from a breach of retainer by the appellant, Mr Mannix, a solicitor, in relation to a rent review clause in a lease agreement. The respondents, Mr and Mrs Loumbos, were the lessors under this lease.
The primary legal issue before the Court of Appeal was whether the District Court judge had erred in making the costs order against Mr Mannix personally. This involved considering whether Mr Mannix's conduct in relation to the rent review clause constituted a breach of his retainer to the Loumbos, and if so, whether that breach justified a personal costs order.
The Court of Appeal, comprising Priestley JA, Fitzgerald JA, and Foster AJA, examined the nature of the retainer and the actions taken by Mr Mannix. The court found that Mr Mannix had acted in breach of his retainer by failing to properly advise his clients, the Loumbos, regarding the rent review clause and its implications. This failure led to a disadvantage for the Loumbos in the lease negotiations. Consequently, the court held that the District Court judge was justified in making a personal costs order against Mr Mannix, as his conduct warranted such an order.
The appeal was dismissed, and Mr Mannix was ordered to pay the costs of the appeal.
The primary legal issue before the Court of Appeal was whether the District Court judge had erred in making the costs order against Mr Mannix personally. This involved considering whether Mr Mannix's conduct in relation to the rent review clause constituted a breach of his retainer to the Loumbos, and if so, whether that breach justified a personal costs order.
The Court of Appeal, comprising Priestley JA, Fitzgerald JA, and Foster AJA, examined the nature of the retainer and the actions taken by Mr Mannix. The court found that Mr Mannix had acted in breach of his retainer by failing to properly advise his clients, the Loumbos, regarding the rent review clause and its implications. This failure led to a disadvantage for the Loumbos in the lease negotiations. Consequently, the court held that the District Court judge was justified in making a personal costs order against Mr Mannix, as his conduct warranted such an order.
The appeal was dismissed, and Mr Mannix was ordered to pay the costs of the appeal.
Orders
Orders of the court
See para 20.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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