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McIlraith v Ilkin (Costs)

McIlraith v Ilkin (Costs)

Case [2007] NSWSC 1052 21 September 2007

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CITATION: McIlraith v Ilkin & anor (Costs) [2007] NSWSC 1052

HEARING DATE(S): 23 August 2007

JUDGMENT DATE :
21 September 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Brereton J

DECISION: Plaintiff to pay defendant’s costs (including his professional costs of acting for himself) on indemnity basis

CATCHWORDS: Costs – Indemnity costs – whether defendant unreasonably put to costs – where plaintiff’s claim summarily dismissed as doomed to fail and for invoking wholly inappropriate jurisdiction – where defendant had previously offered plaintiff opportunity to discontinue without costs – Recovery of costs – solicitor litigant – Chorley exception – whether solicitor litigant entitled to profit costs for work done by himself

CASES CITED: A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10
Buckland v Watts [1970] 1 QB 27
Burford v Allan (1996-7) 68 SASR 217
Cachia v Hanes (1993) 179 CLR 403
Dalgety Australia Operations Ltd v FF Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75
Dobree v Hoffman (WASC, 11 December 1995, unreported, BC9502706
Dobree v Hoffman (WASC, 5 December 1995, Rowland, Steytler and Parker JJ, unreported, BC9606034
Guss v Veenhuizun (No 2) (1976) 136 CLR 47
H Tolputt & Co Ltd v Mole [1911] 1 KB 836
Hanna v Ranger (1912) 31 NZLR 159
Hawthorn Cuppaidge & Badgery v Channell [1992] 2 Qd R 488
Kallinicos v Hunt (2006) 64 NSWLR 561
Khera v Jones [2006] NSWCA 85
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
McArdle & Davidson v Howard [1915] 8 WWR 1056 (Ontario SC)
Ogier v Norton (1904) 29 VLR 536
Reed v Gray [1952] 1 Ch 337
Texas Co (SA) Ltd v Cape Town Municipality [1926] SALR (AD) 467 (Supreme Court of South Africa, Appellate Division)

PARTIES: John Howard McIlraith (plaintiff)
Alexander Leon Ilkin (first defendant)
Suechris Holdings Pty Ltd (second defendant)

FILE NUMBER(S): SC 11667/07

COUNSEL: Mr J H McIlraith (in person)
Mr M Bradford (first defendant)

SOLICITORS: Alex Ilkin Pty Ltd, Solicitors (first defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Friday 21 September 2007

11667/07 John Howard McIlraith v Alexander Leon Ilkin & anor

JUDGMENT

1 HIS HONOUR: On 23 August 2007, I summarily dismissed Mr McIlraith’s proceedings against the first defendant Mr Ilkin, in which he sought to invoke the court’s summary supervisory jurisdiction over its officers, and ordered that Mr McIlraith pay Mr Ilkin’s costs [[2007] NSWSC 911]. Consequently, by consent I dismissed Mr McIlraith’s proceedings against the second defendant Suechris, with no order as to costs. Mr McIlraith seeks leave to file, within eight weeks, a further amended statement of claim. For Mr Ilkin, Mr Bradford seeks an order that the costs payable by Mr McIlraith be assessed on the indemnity basis. Mr McIlraith submits that there should be no costs order, but that in any event Mr Ilkin who acted as his own solicitor should not be entitled to profit…

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 McIlraith v Ilkin (Costs)

Details

AGLC: McIlraith v Ilkin [2007] NSWSC 1052
Case: [2007] NSWSC 1052
Decision Date: 21 September 2007

CaseChat Overview and Summary

The case of McIlraith v Ilkin involved a dispute over indemnity costs following the summary dismissal of the plaintiff's claim as doomed to fail and for invoking an inappropriate jurisdiction. The plaintiff had initiated proceedings against the defendant, but these were dismissed. The defendant had previously offered the plaintiff an opportunity to discontinue the proceedings without incurring costs. The case raised issues concerning whether the defendant was unreasonably put to costs and whether the plaintiff, as a solicitor litigant, was entitled to profit costs for work done by himself.

The primary legal issue before the court was whether the defendant was unreasonably put to costs in the circumstances of the case. Additionally, the court had to determine whether the plaintiff, as a solicitor litigant, could recover profit costs for work done by himself, in light of the Chorley exception. The Chorley exception generally precludes a solicitor litigant from recovering profit costs for work done by himself, but there are exceptions to this rule.

The court held that the defendant was not unreasonably put to costs, as the plaintiff's claim was summarily dismissed for clear and compelling reasons. The court found that the plaintiff had invoked an inappropriate jurisdiction, which justified the defendant's recovery of costs. Regarding the recovery of costs, the court held that the plaintiff was not entitled to profit costs for work done by himself, as the Chorley exception applied. The court found that the plaintiff, as a solicitor litigant, was not entitled to profit costs for work done by himself, and thus, the plaintiff was not entitled to recover costs for work done by himself.

The court ordered that the defendant recover indemnity costs from the plaintiff, but the plaintiff was not entitled to recover profit costs for work done by himself. The final orders reflected the court's reasoning and determination of the legal issues.

Orders