Spence v Leitch - [2010] NSWSC 477

CITATION: Spence v Leitch [2010] NSWSC 477

HEARING DATE(S): 30 April 2010 and 12 May 2010

JUDGMENT DATE :
20 May 2010

JUDGMENT OF: Harrison J

DECISION: The costs of appearances before me on 16 March 2010, 30 April 2010 and 13 May 2010 and the costs thrown away or occasioned by reason of the vacation of the hearing scheduled to commence on 22 March 2010, including the costs of the appearance on that day, be the defendants' costs in the cause.

CATCHWORDS: COSTS – vacated hearing – where plaintiff's solicitor given leave to cease to act – where hearing vacated through no fault of defendants – costs thrown away or occasioned by reason of vacated hearing to be defendants' costs in the cause

CATEGORY: Procedural and other rulings

PARTIES: Allan Spence (Plaintiff)
Robert Royce Leitch, James Paul Hasson, Andrew Peter Dent and Martin Gerard Dunne t/as Leitch Hasson Dent Solicitors

FILE NUMBER(S): SC 2008/289189

COUNSEL: A R Lang (Plaintiff)
M C L Dicker (Defendants)

SOLICITORS: Lawjet (Plaintiff)
Yeldham Price O'Brien Lusk (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESIONAL NEGLIGENCE LIST

HARRISON J

20 May 2010

2008/289189 Allan Spence v Robert Royce Leitch, James Paul Hasson, Andrew Peter Dent and Martin Gerard Dunne t/as Leitch Hasson Dent Solicitors
JUDGMENT

1 HIS HONOUR: This matter was listed for hearing commencing on 22 March 2010 with an estimate of two weeks. On 16 March 2010 the plaintiff's former solicitor made an application for leave to file a notice of ceasing to act. I granted that leave and made a consequential order vacating the hearing. These reasons are concerned with the question of who should pay the costs associated with these events, including appearances on 16 March 2010, 22 March 2010, 30 April 2010 and 13 May 2010, but in particular the costs thrown away or occasioned by reason of the vacated hearing.

Background

2 When dealing with the application by the plaintiff's former solicitor to which I have just referred I gave reasons for my decision that included the following:

"The plaintiff, although not present today, has, so the evidence reveals, been informed that his present solicitors are proposing to make this application. It seems to me, having regard to Mr Cossalter's affidavit, that the relationship of solicitor and client between them and the plaintiff has already broken down, and that, given the shortness of time between now and the commencement of the hearing scheduled on 22 March next, there is little, or in practical terms, no likelihood that either alternative solicitors could be retained in time or that, having regard the other material before me, the plaintiff would be in a position to proceed to conduct the litigation by himself."

3 I directed that the matter be listed before me on 22 March 2010 for directions. That is what occurred.

4 The circumstances that gave rise to the solicitor ceasing to act for the plaintiff followed the service of an offer of compromise by…

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: [2010] NSWSC 477
Decision Date: 20 May 2010

CaseChat Overview and Summary

In Spence v Leitch, the plaintiff sought to recover costs after a hearing was vacated due to the plaintiff's solicitor being granted leave to cease acting in the case. The hearing was vacated through no fault of the defendants. The court was tasked with determining whether the costs thrown away or occasioned by the vacated hearing should be borne by the defendants or the plaintiff. The plaintiff argued that the costs should be borne by the defendants, while the defendants contended that they should not be liable for the costs incurred by the plaintiff's decision to cease acting.

The court examined the circumstances leading to the hearing being vacated and the implications of the plaintiff's solicitor ceasing to act. It considered the legal principles governing costs in such situations, particularly where a party's actions have led to a hearing being vacated. The court concluded that where a hearing is vacated through no fault of the defendants, and the costs thrown away or occasioned by the vacated hearing are due to the plaintiff's decision to cease acting, those costs should be borne by the defendants. This decision was based on the principle that the party responsible for the hearing being vacated should bear the costs associated with it.

The court's reasoning was that the defendants were not at fault for the hearing being vacated, and the costs incurred were a direct result of the plaintiff's decision to cease acting. Therefore, the court ruled that the defendants should bear the costs thrown away or occasioned by the vacated hearing. The court vacated the hearing and ordered that the costs thrown away or occasioned by the vacated hearing were to be the defendants' costs in the cause.

Orders