Snorkel Elevating Work Platforms Pty Limited v The Nominal Defendant - [2007] ACTCA 14

SNORKEL ELEVATING WORK PLATFORMS PTY LIMITED & ANOR v THE NOMINAL DEFENDANT & ORS
[2007] ACTCA 14 (26 June 2007)

APPEAL from interlocutory decision – first appellant had lodged a Notice of Contribution against second appellant in primary proceedings – first respondent challenged retainer of same counsel to act for both parties – whether challenge to the retainer justified – whether indemnity costs order made against appellants despite first respondent’s challenge to retainer being unsuccessful justified

Law Reform (Miscellaneous Provisions) Act 1955

Civil Law (Wrongs) Act 2002, ss 206, 207, 208

Prince Jefri Bokliah v KPMG [1999] 2 AC 222
Hanna v National Library of Australia [2004] ACTSC 75 (1 September 2004)
Ottway v Jones [1955] 2 All ER 585
Knight v Clifton [1971] Ch 700, 713
TPC v Nicholas Enterprises Pty Ltd (No. 3) (1979) 42 FLR 213, 220
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129, 156
Cretazzo v Lombardi (1975) 13 SASR 4, 12)
Mannix v Loumbos [2000] NSWCA 32 at [13]
Oshlack v Richmond River Council (1998) 193 CLR 72
Hawksford v Hawksford [2005] NSWSC 463; (2005) 191 FLR 173
Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38, 43; [1997] FCA 504
Alsco Linen Pty Ltd v Cox [2003] NSWSC 550
Church of Jesus Christ of Latter Day Saints & Anor v Rahme & Anor [2003] NSWSC 550
Knox Street Apartments v Flexman [2002] NSWSC 102
Zimmerman Holdings Pty Ltd v Cooney [2002] NSWSC 387
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2004] ACTSC 75
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561; [2005] NSWSC 1181
Grimwade v Meagher [1995] 1 VR 446
R v Wilson and Grimwade [1995] 1 VR 163
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
The Law Society of New South Wales v Holt [2003] NSWSC 629
Bowen v Stott [2004] WASC 94

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33 - 2006
No. SC 157 of 1999

Judges: Higgins CJ, Gray and Tamberlin JJ
Court of Appeal of the Australian Capital Territory
Date: 26 June 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 33 - 2006
  )          No. SC 157 of 1999
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SNORKEL ELEVATING WORK PLATFORMS PTY LIMITED
ACN 003 724 141

First Appellant

SNORKEL ELEVATING WORK PLATFORMS LIMITED (SNORKEL (EWP) NZ)

Second Appellant

AND:THE NOMINAL DEFENDANT

First Respondent

MICHAEL GERARD HAY

Second Respondent

KENNARDS HIRE PTY LTD
ACN 001 740 727

Third Respondent

KENNARDS HIRE AUSTRALIA PTY LIMITED ACN 000 166 352

Fourth Respondent

EASI-RENTS PTY LIMITED
ACN 003 617 105

Fifth Respondent

BORREN METAL FORMING LIMITED

Sixth Respondent

ORDER

Judges: Higgins CJ, Gray and Tamberlin…

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: [2007] ACTCA 14
Decision Date: 26 June 2007

CaseChat Overview and Summary

Snorkel Elevating Work Platforms Pty Limited (the first appellant) and the Nominal Defendant (the first respondent) were parties to primary proceedings. The first appellant had lodged a Notice of Contribution against the second appellant. The first respondent challenged the retainer of the same counsel to act for both the first and second appellants, arguing this created a conflict of interest. The primary judge had dismissed the first respondent's challenge to the retainer but made an indemnity costs order against the appellants. The appeal concerned whether the challenge to the retainer was justified and whether the indemnity costs order was appropriate.

The Full Federal Court was required to determine two principal legal issues. First, whether the first respondent's challenge to the retainer of counsel by both the first and second appellants was justified. Second, whether the indemnity costs order made against the appellants in respect of that challenge was justified, notwithstanding the challenge's unsuccessful outcome at first instance.

The Court allowed the appeal, finding that the challenge to the retainer was not justified. The Court reasoned that the circumstances did not give rise to a conflict of interest that would warrant intervention. Consequently, the Court set aside the indemnity costs order made against the appellants in relation to the challenge to retainer and ordered that the first respondent pay the appellants' costs in respect of that challenge. The Court remitted the question of the extent of the costs order and whether the first respondent should pay the other respondents' costs to the trial judge. The first respondent was also ordered to pay the appellants' costs of the application and the appeal.

Orders

Orders of the court

1. Leave to appeal be granted;

2. The appeal be allowed;

3. The costs order made on 24 August 2006 in respect of the challenge to retainer be set aside and in lieu thereof an order that the first respondent pay the appellants? costs in respect of the challenge to retainer;

4. The question of the extent of the costs order and whether the first respondent be ordered to pay the other respondents? costs be remitted to the trial judge; and

5. The first respondent pay the appellants? costs of and incidental to this application and appeal.

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

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