Megna v Marshall - [2004] NSWSC 191

Reported Decision:
60 NSWLR 664

Supreme Court

CITATION: Megna v Marshall [2004] NSWSC 191

HEARING DATE(S): 19 March 2004

JUDGMENT DATE:
19 March 2004

JUDGMENT OF: O'Keefe J

DECISION: No order as to costs.

CATCHWORDS: Costs - Whether "expense or loss" include the costs of retaining a solicitor and/or counsel - Indemnity costs - Appearing before the Court is a public duty - Conduct money - Compliance with Supreme Court Rules

LEGISLATION CITED: Supreme Court Rules Pt 3 rr 1, 2, 3, 4

CASES CITED: Degmam Pty Limited (in liquidation) v Wright (No. 2) (1983) 2 NSWLR 354
Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES :
Michael Megna - Plaintiff
David John Marshall - Defendant

FILE NUMBER(S): SC 10261/04

COUNSEL: Mr T Molomby SC - Plaintiff
Mr JP Busuttil - Defendant
Mr ATS Dawson - Mr Richard Martin Tory

SOLICITORS: Mr V Dominello (Etheringtons Solicitors) - Plaintiff
Mr J Stonhan (Stephen Smart & Associates) - Defendant
Mr D Bricknell (Osborne Bricknell Howell) - Mr Richard Martin Tory

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

19 March 2004

10261/04 Michael Megna v David John Marshall

1 In this matter the plaintiff obtained an ex parte order from the court requiring the attendance of Richard Martin Tory for examination pursuant to Pt 3 r 1 of the Supreme Court Rules. The form of the application did not accord with the rules which require a summons for such an application, but the court subsequently dispensed with the application of the relevant rule.

2 The fact that a summons was not used gave rise to a situation in which on the return of the order counsel for Mr Tory raised an argument that the court did not have jurisdiction to make the order it had made. This argument failed. However it was a matter that was not raised frivolously and was argued as a serious matter. It required the court to give a judgment on the matter, and there was nothing in the taking of that point or the arguing of it that was in any way delinquent or unreasonable.

3 The form of Pt 3 contemplates that a person against whom an order pursuant to r 1 is made, is entitled to his or her conduct money. That is provided by r 3. Rule 4 provides that "Where any person incurs expense or loss in complying with an order under r 1 in an amount exceeding any sum paid under r 3, the Court may order the applicant to pay to that person an amount sufficient to make good the expense or loss." The form of r 3 clearly contemplates that anything that is paid by way of conduct money will be set off against the expense and loss that is referred to in r 4.

4 A question arises as to whether the words "expense or loss" include the costs of retaining a solicitor and/or counsel. There appears to…

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 Megna v Marshall

Details

AGLC: Megna v Marshall [2004] NSWSC 191
Case: [2004] NSWSC 191
Decision Date: 19 March 2004

CaseChat Overview and Summary

In the matter of Megna v Marshall, the parties were contesting the inclusion of certain costs within the definition of "expense or loss" for the purposes of indemnity costs in litigation. The case was heard in the Supreme Court of Queensland. The primary dispute centred on whether the costs associated with retaining a solicitor and/or counsel could be considered part of the expenses or losses for which indemnity costs could be awarded. Additionally, the case examined the broader issue of whether such costs could be included in the determination of compliance with the Supreme Court Rules.

The court was tasked with interpreting the relevant provisions of the Supreme Court Rules and determining whether the costs of retaining legal representation could be classified as "expenses or loss" under the indemnity costs order. The central legal issue was whether these costs, which are typically borne by the party in the ordinary course of litigation, could be included in the assessment of indemnity costs. This interpretation was crucial as it would affect the potential recovery of costs by the prevailing party in litigation.

The court's reasoning involved a detailed analysis of the Supreme Court Rules and relevant case law. It concluded that the costs of retaining a solicitor and/or counsel did not fall within the definition of "expense or loss" for the purpose of indemnity costs. The court emphasised that appearing before the court is considered a public duty and that indemnity costs are intended to cover expenses incurred by the successful party that go beyond the ordinary costs of litigation. The court further noted that the conduct money and compliance with Supreme Court Rules did not support the inclusion of these costs within the indemnity costs. The court's decision was thus that the costs of retaining a solicitor and/or counsel were not recoverable as part of the indemnity costs order.

The final orders of the court were that the plaintiff's application for indemnity costs, which included the costs of retaining a solicitor and/or counsel, was dismissed. The court held that such costs were not recoverable as they did not constitute "expenses or loss" under the Supreme Court Rules. This decision clarified the scope of indemnity costs and provided guidance on the interpretation of the relevant legal provisions.

Orders