Pritchard v Fryer (No 2) - [2020] NSWSC 344

Supreme Court

New South Wales

Medium Neutral Citation: Pritchard v Fryer (No 2) [2020] NSWSC 344
Hearing dates: 1 April 2020
Date of orders: 01 April 2020
Decision date: 01 April 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [15]

Catchwords: CIVIL PROCEDURE – orders of judgement – payment of sum on account of costs as condition of leave to make application for amend - quantum
Cases Cited: Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44
Category: Procedural and other rulings
Parties: Andrew Ronald Pritchard (Cross-Claimant)
Gregory Robert Fryer (First Cross-Defendant)
Phillip Gregory Sharrock (Second Cross-Defendant)
Representation:
Counsel:
V Shepherd (Second Cross-Defendant)

Solicitors:
Carter Newell Lawyers (Second Cross-Defendant)
In person:
Cross-Claimant
First Cross-Defendant

File Number(s): 2018/282469
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 3 April 2020

The proceedings are before the Court for the making of orders to reflect the judgment which I delivered on 24 March: Pritchard v Fryer [2020] NSWSC 311. The orders to carry my judgment into effect are agreed between the parties except for two matters.
The first is the quantum of the payment which is to be made by Mr Pritchard as a condition of being able to make a further application for leave to amend his Statement of Cross‑Claim as against Mr Sharrock. Mr Sharrock’s solicitors sought the sum of $40,000.
Counsel for Mr Sharrock tendered the first page of four tax invoices from Mr Sharrock’s solicitors recording professional fees and disbursements concerning these proceedings. The invoices were dated 30 August 2019, 31 October 2019, 31 January 2020 and 31 March 2020. The total amount, inclusive of GST, is approximately $77,000.
Only the first page of each invoice has been tendered. I understand that the reason for this is that Mr Sharrock’s solicitors maintain a claim for privilege over the rest of the bills, which presumably include more detailed descriptions of the work that has been done.
I find this difficult to understand because authority establishes that a solicitor’s bill only attracts privilege to the extent that it incidentally records instructions and advice: see Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44. It has the result that the Court has only the bare fact of the amounts charged over the period while the notices of motion the subject of my judgment were current. The Court does not know what other work was done on the matter over that period.
Having said that, I am only fixing an amount to be paid on account of the costs liability as ultimately to be determined by assessment. The broadest of brushes can be used in fixing the figure.
Quite reasonably, Mr Pritchard indicated that he had little information to challenge the figure that was sought. But he did refer to the retainer of counsel, and to the fact that both senior and junior solicitors appear to have been extensively involved in working on these applications. But I do not find that surprising for litigation of this character.
A…

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: [2020] NSWSC 344
Decision Date: 01 April 2020

CaseChat Overview and Summary

The matter of Pritchard v Fryer (No 2) involved a dispute between the plaintiff, Pritchard, and the defendant, Fryer, in the Federal Court of Australia. The core issue revolved around the court's order for Pritchard to pay a sum on account of costs as a precondition for leave to apply to amend a pleading. The dispute centred on the quantum of the payment required and whether such a condition was appropriate in the circumstances.

The court had to address whether the requirement for Pritchard to pay a specific amount of costs as a condition for leave to amend was a valid exercise of the court's discretion under the relevant rules of court. Additionally, the court needed to determine whether the quantum of the payment was reasonable and proportionate to the circumstances of the case. The overarching issue was whether the court's order was just and equitable in light of the principles of fairness and procedural justice.

The court held that the requirement for Pritchard to pay a sum on account of costs before being granted leave to amend was a legitimate exercise of the court's discretion. The court found that the payment was reasonable and proportionate to the circumstances, considering the complexity of the case and the stage at which the application to amend was made. The court emphasised the importance of ensuring that the costs orders did not unduly burden the applicant and that they were proportionate to the benefit that would accrue from the amendment. Ultimately, the court's order was deemed just and equitable, reflecting a balanced approach to the principles of fairness and procedural justice.

Orders