A: Ms Wentworth and Mr Russo in person R: GM Preston
SOLICITORS:
A: Ms Wentworth and Mr Russo in person R: Richard A Licardy & Company
CATCHWORDS:
COSTS - Costs on the indemnity basis - Costs orders against legal practitioners - Orders for payment of costs on the indemnity basis made against applicant for relief and also her solicitor - Discussion of principles upon which costs on the indemnity basis ordered - Discussion of principles on which costs orders are made against legal practitioners - Counsel for respondent claimed to have appeared pro bono - Whether appropriate for this matter to be dealt with by Court or costs assessor - Analysis of complex factual situation.
Myers v Elman [1940] AC 282 Leicester v Walton (22 November 1995, NSW Court of Appeal, unreported) Graham v Aluma-Lite Pty Ltd (25 March 1997, NSW Court of Appeal, unreported)
DECISION:
Leave granted to appeal against one order of Sperling J, that appeal allowed, application for leave to appeal otherwise dismissed
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40590/97 CLD 19228/82
HANDLEY JA STEIN JA SHEPPARD AJA
Friday, 29 October 1999
Katherine WENTWORTH v Gordon ROGERS
JUDGMENT
(Application for leave to appeal against order for indemnity costs and for certain orders and other relief)
1 THE COURT: By their summons filed on 11 September 1997 the claimants, Katherine Wentworth and Salvatore Russo, seek a number of orders. The summons is not expressed in the language of an application for leave to appeal. Rather, it claims a number of orders setting aside orders made by judges of this Court sitting in the Common Law Division, or orders for other relief including orders for costs, orders that a judge of this Court was disqualified from making any order for costs in the proceedings before him and orders that counsel and solicitors retained by the opponent, Gordon Rogers, personally pay costs incurred by the claimants on the indemnity basis.
2 The earlier history of this matter is set out in the judgment of this Court delivered on 21 October 1998. That judgment refused with costs an application made by Ms Wentworth for leave to appeal against the orders made by Sperling J on 26 February 1997 in consequence of his judgment of 10 September 1996. Leave to appeal was necessary because the orders made by Sperling J were interlocutory. The matters in question in this application, dealing as they do with the costs of the interlocutory proceedings before Sperling…
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 Wentworth v Rogers
Sign in free to access the full text
Details
AGLC
Wentworth v Rogers [1999] NSWCA 403
Case
[1999] NSWCA 403
Decision Date
CaseChat Overview and Summary
The appeal concerned costs orders made by Sperling J in the Supreme Court of New South Wales. The applicant for relief, Ms Wentworth, and her solicitor, Mr Rogers, were both ordered to pay the respondent's costs on an indemnity basis. The respondent claimed to have appeared pro bono.
The central legal issues before the Court of Appeal were the principles governing the award of costs on an indemnity basis, and the circumstances in which costs orders may be made against legal practitioners personally. The Court was required to consider whether the factual circumstances of the case justified such orders.
The Court analysed the principles for awarding indemnity costs, noting that while costs ordinarily follow the event, indemnity costs are an exception requiring special circumstances. These circumstances typically involve unreasonable or improper conduct, or a failure to act in good faith. The Court also examined the principles for making costs orders against legal practitioners, which generally require misconduct or negligence that has caused prejudice to the other party. The Court considered the complex factual matrix presented by the case in applying these principles.
Leave to appeal was granted in relation to one of the costs orders made by Sperling J, and that appeal was allowed. The applications for leave to appeal in relation to the other costs orders were dismissed.
Orders
Orders of the court
Leave granted to appeal against one order of Sperling J, that appeal allowed, application for leave to appeal otherwise dismissed