Walton v Walton - [2015] NSWSC 409

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Walton v Walton [2015] NSWSC 409
Hearing dates: 10 April 2015 on the papers
Decision date: 13 April 2015
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Legal practitioner’s costs of the costs application disallowed and practitioner ordered to pay to the plaintiff 90 per cent of the costs she is ordered to pay the defendants

Catchwords: LEGAL PRACTITIONER – costs – where plaintiff ordered to pay defendants’ costs – plaintiff’s solicitor’s costs of the costs application disallowed as between the solicitor and plaintiff – plaintiff’s solicitor ordered to pay to the plaintiff 90 per cent of the costs of the costs application that she is ordered to pay the defendants
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Walton v Walton [2015] NSWSC 218
Walton v Walton [2015] NSWSC 405
Harris v Villacare Pty Limited [2012] NSWSC 452
Category: Procedural and other rulings
Parties: Lynda Joyce Walton (Plaintiff)
Peter George Walton (First Defendant)
Helen Walton (Second Defendant)
Representation:
Counsel:
M McHugh SC (for S Neagle)
Solicitors:
Neagle Lawyers (Plaintiff)
Emil Ford Lawyers (Defendants)

File Number(s): SC 2012/382828

Judgment

I gave judgment in these proceedings on 16 March 2015, dismissing the plaintiff’s claim: Walton v Walton [2015] NSWSC 218.
On 1 April 2015 I heard argument as to costs and ordered that the plaintiff pay the defendants’ costs: Walton v Walton [2015] NSWSC 405 at [34(2)].
I also ordered that the plaintiff’s solicitor, Mr Shane Neagle, show cause by 10 April 2015 why I should not:

pursuant to s 99(2)(a)(ii) of the Civil Procedure Act 2005 (NSW), as between Mr Neagle and the plaintiff, disallow Mr Neagle’s costs of the costs application, including of the preparation of the “Plaintiff’s Court Book – Costs Application” and the affidavits sworn by him, by the plaintiff, and by Ms Robyn Anne Walton and Ms Elizabeth Mary Atkinson;

pursuant to s 99(2)(b)(ii) of that Act, order Mr Neagle to pay to the plaintiff the costs that I ordered the plaintiff to pay the defendants, so far as those costs arise from the costs application; and

refer my reasons of 1 April 2015 to the Law Society of New South Wales with a view to the Law Society considering whether Mr Neagle has engaged in professional misconduct or unsatisfactory professional conduct: Walton v Walton [2015] NSWSC 405 at [34(3)] and [34(4)].

I have now received an affidavit sworn by Mr Neagle on 10 April 2015, together with written submissions from Mr Michael McHugh SC.
In his affidavit, Mr Neagle said that he did not “take issue with or oppose” costs orders to the effect set out at [3(a) and (b)] above, but asked that the “professional conduct referral not be made”.
Mr Neagle said:

“I can assure the Court this has been a watershed moment in my professional life. As a result of these and other events I am intending to take extended leave, and am reassessing my practice, including with [sic] no longer…

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 Walton v Walton

Details

AGLC: Walton v Walton [2015] NSWSC 409
Case: [2015] NSWSC 409
Decision Date: 13 April 2015

CaseChat Overview and Summary

In the Family Court of Australia, Walton v Walton was a case involving a dispute between the parties over costs. The plaintiff, Walton, sought to recover costs from the defendant, also Walton, in relation to proceedings between the parties. The plaintiff was ordered to pay the defendants’ costs, and subsequently sought to recover some of those costs from the defendants. The plaintiff's solicitor subsequently applied for an order that the defendants pay the plaintiff's solicitor's costs of that application. The defendants opposed the application, and the court was required to decide the issue of the plaintiff's solicitor's costs of the costs application.

The court had to determine whether the plaintiff's solicitor was entitled to recover their costs of the costs application from the defendants. The court noted that the usual rule is that costs follow the event, and that the plaintiff's solicitor's costs of the costs application were between the solicitor and the plaintiff, not the solicitor and the defendants. The court also noted that the plaintiff's solicitor's costs of the costs application were excessive, and that the plaintiff's solicitor had not provided sufficient justification for those costs. The court held that the plaintiff's solicitor was not entitled to recover their costs of the costs application from the defendants, but that the plaintiff's solicitor was ordered to pay to the plaintiff 90 per cent of the costs of the costs application that the plaintiff's solicitor was ordered to pay to the defendants.

The court's decision meant that the plaintiff's solicitor was not able to recover their costs of the costs application from the defendants, but was required to pay a portion of those costs to the plaintiff. The court's reasoning was based on the principle that costs follow the event, and that the plaintiff's solicitor's costs of the costs application were between the solicitor and the plaintiff, not the solicitor and the defendants. The court also considered the excessive nature of the plaintiff's solicitor's costs of the costs application, and the lack of justification provided by the plaintiff's solicitor. The final orders of the court included an order that the plaintiff's solicitor pay to the plaintiff 90 per cent of the costs of the costs application that the plaintiff's solicitor was ordered to pay to the defendants.

Orders