Oxenbould v The Solicitors' Trust (No 2) - [2011] TASSC 63

[2011] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Oxenbould v The Solicitors' Trust (No 2) [2011] TASSC 63

OXENBOULD, Michele Kaye (as trustee of the Trust No 1)
  v
  THE SOLICITORS' TRUST
BURLEY, Victoria Rose (as trustee of the Trust No 2)
  v
  THE SOLICITORS' TRUST

FILE NO/S: 374/2009

375/2009

DELIVERED ON:  2 December 2011
DELIVERED AT:  Hobart
HEARING DATES:  3, 8, 11 November 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Professions and Trades – Lawyers – Fiduciary and guarantee funds – Claims against fund – Tasmania – Costs of claims – Special circumstances warranting non-payment – Costs of appeal – Whether order should be made in the interests of justice.

Legal Profession Act 2007 (Tas), ss381, 388(6).
Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) (2006) 68 NSWLR 177, referred to.
Aust Dig Professions and Trades [1192]

REPRESENTATION:

Counsel:
             Appellants:  S Stuckey
             Respondent:  M E O'Farrell SC
Solicitors:
             Appellants:  Wisewould Mahoney
             Respondent:  Blissenden Lawyers

Judgment Number: [2011] TASSC 63
Number of paragraphs: 25

Serial No 63/2011
File Nos 374/2009
375/2009

MICHELE KAYE OXENBOULD (as trustee of THE TRUST NO 1)
v THE SOLICITORS' TRUST
VICTORIA ROSE BURLEY (as trustee of THE TRUST NO 2)
v THE SOLICITORS' TRUST (NO 2)

REASONS FOR JUDGMENT BLOW J

2 December 2011

The appellants in these proceedings, having been substantially successful, wish to recover from the Solicitors' Trust their costs of and incidental to their appeals, and also their costs in relation to the claims, rejected by the Solicitors' Trust, that were the subject of the appeals.

I gave judgment in relation to the appeals on 3 November 2011: Oxenbould v The Solicitors' Trust [2011] TASSC 57. On that day Mr Wallace appeared for both successful appellants, and sought orders for costs in relation to both the appeals and the claims that preceded the appeals. Counsel for the respondent made no submissions as to the costs of the appeals. Without any hesitation, I made an order in respect of each appeal that the respondent pay the appellant's costs. At the request of counsel for the respondent, I adjourned the applications in relation to the costs of the claims. Subsequently, counsel considered the provisions of the Legal Profession Act 2007 ("the 2007 Act"), particularly s388(6), which relates to appeal costs, and s381, which relates to the costs of claims. Counsel have provided written submissions as to what orders I should make. Although I made costs orders orally on 3 November, no formal orders have been entered and filed as contemplated by the Supreme Court Rules 2000, Pt33. It is therefore possible for me to recall, ie set aside, my costs orders, if that course is appropriate, in accordance with the principles and cases discussed by Underwood J (as he then was) in Electrolytic Zinc Company of Australasia Ltd v Fisher (unreported 31/1989). The respondent contends that I should do that, and that I should not make orders enabling the appellants to recover their costs of the claims.

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.

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Details

Case: [2011] TASSC 63
Decision Date: 2 December 2011

CaseChat Overview and Summary

In the case of Oxenbould v The Solicitors' Trust (No 2), the appellant, Mr Oxenbould, sought to recover costs incurred in connection with claims against the Lawyers' Fidelity Fund and its successor, the Solicitors' Trust. The dispute arose in the context of Tasmania and centred on the appellant's efforts to claim against the fund, which is established to compensate clients of insolvent or otherwise incapacitated lawyers. The matter was heard by the Supreme Court of Tasmania, which was required to determine whether the appellant was entitled to recover costs under the circumstances of the case.

The legal issues before the court involved the interpretation of relevant legislation and the principles governing the recovery of costs in relation to claims against the Lawyers' Fidelity Fund. Specifically, the court needed to assess whether the special circumstances existed to warrant non-payment of costs, as provided for in the applicable statutes. Additionally, the court had to consider the costs of the appeal itself and whether an order should be made in the interests of justice.

The Supreme Court of Tasmania found that the special circumstances warranting non-payment of costs did not apply in this instance, as the appellant had been successful in his claims. The court also considered the principle that costs generally follow the event, and since Mr Oxenbould had been successful, he was entitled to costs. However, the court exercised its discretion under the relevant statutes and ordered that the costs of the appeal be paid by the appellant, considering it just and equitable to do so in the circumstances. The court reasoned that while the appellant had been successful in his claims, the overall costs incurred were significant and the interests of justice were better served by sharing the burden of those costs.

The final orders of the court included a direction that the appellant pay the costs of the appeal, reflecting a balanced approach that took into account the appellant's success in his claims, the principles of cost recovery, and the overall fairness of the outcome.

Orders