Court of Appeal
New South Wales
Case Title: McHugh & Anor v Eastern Star Gas Ltd & Ors Medium Neutral Citation: [2012] NSWCA 169 Hearing Date(s): 22 May 2012 Decision Date: 08 June 2012 Jurisdiction: Before: Bathurst CJ at [1]
Macfarlan JA at [2]
Whealy JA at [3]Decision: (1) Leave to appeal is granted.
(2) The appeal by Michael McHugh and ACN 109 532 630 Pty Ltd is allowed.
(3) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Eastern Star Gas Ltd of the proceedings in the Narrabri Mining Warden's Court on an indemnity basis is set aside.
(4) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Ronald and Dean Von Harten of and incidental to their motion filed on 23 June 2009 in the Narrabri Mining Warden's Court on an indemnity basis is set aside.
(5) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay the costs of and incidental to the hearing before the primary judge, being the costs of Eastern Star Gas Ltd and of Dean and Ronald Von Harten is set aside.
(6) Order that Eastern Star Gas Ltd, Dean Von Harten and Ronald Von Harten pay the costs of and incidental to the hearing before the primary judge (save and except for the costs of and incidental to the preparation of the Court Book).
(7) Eastern Star Gas Ltd is to pay the appellants' costs of the appeal.
(8) Dean and Ronald Von Harten are to have a certificate under the Suitors' Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - CIVIL - costs of Mining Warden proceedings - proceedings commenced without authority - ratification of solicitor's retainer - solicitor acting outside of instructions - whether solicitor personally liable for costs of third party - source of power to order costs - Civil Procedure Act (2005) s98, s99.
CORPORATIONS - informal meeting - validity of resolution passed at an informal meeting.
Legislation Cited: - Civil Procedure Act 2005 (NSW) - s 95, s 98, s 99, ss 140143
- Petroleum (Onshore) Act 1991 (NSW) - Pt 11
- Supreme Court Act 1970 (NSW) - s 76(1)
- Uniform Civil Procedure Rules 2005 (NSW) - r 42.3Cases Cited: - Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; 55 ACSR 1
- Bremner v Sinclair, unreported, NSWCA, 3 November 1998; (2001) ANZ Conv R 29
- Commissioner of Taxation (Cth) v Sara Lee Household & Body Care…
Continue reading McHugh v Eastern Star Gas Ltd
Sign in free to access the full text
- AGLC
- McHugh v Eastern Star Gas Ltd [2012] NSWCA 169
- Case
- [2012] NSWCA 169
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the solicitor involved was personally liable for the costs of a third party, the source of the power to order such costs, and the validity of a resolution passed at an informal meeting of a corporation. Central to the appeal was the question of whether the appellants were correctly ordered to pay a proportion of the costs incurred by Eastern Star Gas Ltd and Ronald and Dean Von Harten in the Warden's Court proceedings and before the primary judge, on an indemnity basis.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in ordering the appellants to pay 50% of the costs of Eastern Star Gas Ltd and Ronald and Dean Von Harten in the Warden's Court proceedings on an indemnity basis. The Court also set aside the order that the appellants pay the costs of and incidental to the hearing before the primary judge. Instead, the Court ordered that Eastern Star Gas Ltd, Dean Von Harten, and Ronald Von Harten pay the costs of the hearing before the primary judge, with an exception for the preparation of the Court Book. The Court further ordered that Eastern Star Gas Ltd pay the appellants' costs of the appeal, and that Dean and Ronald Von Harten be entitled to a certificate under the Suitors' Fund Act 1951, if qualified.
Orders
Orders of the court
(1) Leave to appeal is granted.
(2) The appeal by Michael McHugh and ACN 109 532 630 Pty Ltd is allowed.
(3) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Eastern Star Gas Ltd of the proceedings in the Narrabri Mining Warden's Court on an indemnity basis is set aside.
(4) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Ronald and Dean Von Harten of and incidental to their motion filed on 23 June 2009 in the Narrabri Mining Warden's Court on an indemnity basis is set aside.
(5) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay the costs of and incidental to the hearing before the primary judge, being the costs of Eastern Star Gas Ltd and of Dean and Ronald Von Harten is set aside.
(6) Order that Eastern Star Gas Ltd, Dean Von Harten and Ronald Von Harten pay the costs of and incidental to the hearing before the primary judge (save and except for the costs of and incidental to the preparation of the Court Book).
(7) Eastern Star Gas Ltd is to pay the appellants' costs of the appeal.
(8) Dean and Ronald Von Harten are to have a certificate under the Suitors' Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.