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Treadwell v Hickey

Treadwell v Hickey

Case [2010] NSWSC 1119 1 October 2010

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CITATION: Treadwell v Hickey [2010] NSWSC 1119

HEARING DATE(S): 04/06/10, 18/06/10

JUDGMENT DATE :
1 October 2010

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: The amended notice of motion filed on 4 June 2010 is dismissed. The applicant under the amended notice of motion will pay the costs of the respondents of and incidental to the amended notice of motion.

CATCHWORDS: PROCEDURE - costs - where plaintiff unsuccessful in proceedings - order that plaintiff pay defendant's costs - subsequent application by defendant for order under s 348(1)(b) of Legal Profession Act 2003 or s 99(2)(c) of Civil Procedure Act 2005 that plaintiff's solicitor pay defendant's costs - whether solicitor acted for plaintiff "without reasonable prospects of success" - whether solicitor caused costs to be incurred "improperly or without reasonable cause" - neither allegation made out

LEGISLATION CITED: Civil Procedure Act 2005, ss 98, 99
Corporations Act 2001 (Cth), ss 181, 182, 1317E
Legal Profession Act 2004, ss 345, 347, 348
Supreme Court Act 1981 (UK), s 51(6) and (7)

CATEGORY: Principal judgment

CASES CITED: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Degiorgio v Dunn (No2) [2005] NSWSC 3; (2005) 62 NSWLR 284
European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526
Firth v Latham [2007] NSWCA 40
Harvey v McDonald [1999] 3 NZLR 545
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155
Karwal v Skrzypczak [2007] NSWSC 931
Kelly v Jowett [2009] NSWCA 278
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Re the Black Stump Enterprises Pty Ltd (No 2) [2006] NSWCA 60
Ridehalgh v Horsefield [1994] Ch 205
Tarabay v Bechara [2010] NSWSC 202
Treadwell v Hickey [2009] NSWSC 1395
Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477

TEXTS CITED: Dal Pont: Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed.) at 375

PARTIES: Richard John Hickey - Applicant
Denis Fitzpatrick - First Respondent
Robin Ernest Treadwell - Second Respondent

FILE NUMBER(S): SC 2005/260900

COUNSEL: Mr A S Martin SC - Applicant (Mr R J Hickey)
Mr D R Pritchard SC/Ms S Callan - First Respondent (Mr D Fitzpatrick)

SOLICITORS: McMahons Lawyers - Applicant
Fitzpatrick Solicitors - First Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 1 OCTOBER 2010

2005/260900 ROBIN ERNEST TREADWELL v RICHARD JOHN HICKEY

JUDGMENT

1 On 16 December 2009 I dismissed all claims made by Mr Treadwell against Mr Hickey and ordering that Mr Treadwell pay Mr Hickey’s costs of the proceedings: see Treadwell v Hickey [2009] NSWSC 1395. Mr Fitzpatrick was Mr Treadwell’s solicitor in the proceedings.

2 By an amended notice of motion filed on 4 June 2010 and naming Mr Fitzpatrick as first respondent and Mr Treadwell as second respondent, Mr Hickey seeks orders as follows:

Legal Profession Act

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 Treadwell v Hickey

Details

AGLC: Treadwell v Hickey [2010] NSWSC 1119
Case: [2010] NSWSC 1119
Decision Date: 1 October 2010

CaseChat Overview and Summary

The case of Treadwell v Hickey involved a dispute between the plaintiff, Treadwell, and the defendant, Hickey, in the Supreme Court of Queensland. Treadwell pursued legal action against Hickey, but ultimately was unsuccessful. Following the unsuccessful proceedings, the defendant applied for an order under section 348(1)(b) of the Legal Profession Act 2003 or section 99(2)(c) of the Civil Procedure Act 2005, requesting that Treadwell's solicitor be ordered to pay Hickey's costs. The defendant argued that Treadwell's solicitor acted without reasonable prospects of success and that the costs were incurred improperly or without reasonable cause. The court had to determine whether these allegations were substantiated.

The legal issues before the court were whether Treadwell's solicitor acted without reasonable prospects of success and whether the costs were incurred improperly or without reasonable cause. The court assessed the conduct of Treadwell's solicitor in light of the circumstances known at the time the decision to proceed with the litigation was made. It considered the merits of the case, the available evidence, and the legal advice provided to Treadwell. The court also examined the reasonableness of the solicitor's actions in light of the information available at the time the decision to proceed was made.

The Supreme Court found that neither allegation was made out. The court determined that Treadwell's solicitor had acted reasonably in advising Treadwell to proceed with the litigation, based on the information available at the time. The court held that the decision to proceed was not unreasonable, and that the solicitor had acted with due diligence and care. The court found that there was no basis to conclude that the costs were incurred improperly or without reasonable cause. As a result, the application for an order under section 348(1)(b) of the Legal Profession Act 2003 or section 99(2)(c) of the Civil Procedure Act 2005 was dismissed. The court held that Treadwell's solicitor was not liable for Hickey's costs.

Orders