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Wilson v Gilles (No 2)

Wilson v Gilles (No 2)

Case [2020] NSWSC 658 1 June 2020

Costs

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Gilles (No 2) [2020] NSWSC 658
Hearing dates: On the papers
Date of orders: 01 June 2020
Decision date: 01 June 2020
Jurisdiction: Equity
Before: Rees J
Decision:
No costs orders made.

Catchwords: COSTS – indemnity costs sought payable forthwith – solicitors acting for wife – previously acted for husband and wife – dispute about trust monies held by solicitors for husband and wife – Law Society ethics guidance not followed – catalyst for husband’s failed motion – no costs orders made.
Legislation Cited: Family Law Act 1975 (Cth), s 117
Legal Profession Uniform Law (NSW), s 138
Uniform Civil Procedure Rules 2005 (NSW), r 42.7
Cases Cited: Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142
Mundi v Hesse [2018] NSWSC 1548
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Verde Terra Pty Limited v Central Coast Council (No 5) [2020] NSWLEC 48
Wilson v Gilles [2020] NSWSC 657
Category: Costs
Parties: Paul Wilson (Plaintiff)
Joseph Gilles (First Defendant)
Gregory Eliades (Second Defendant)
Rena Wilson (Third Defendant)
Representation:
Counsel:
Mr G George (Plaintiff)
Mr L Fermanis (First and Second Defendants)
Mr J Horowitz (Third Defendant)
Solicitors:
The Law Shoppe (Plaintiff)
Giles, Payne & Co (First and Second Defendants)

File Number(s): 2020/143909

Judgment

HER HONOUR: On 20 May 2020, I gave judgment in Wilson v Gilles [2020] NSWSC 657 refusing to make orders sought by the plaintiff, Paul Wilson, that 75% of the proceeds of sale of a property in Hillsdale be paid to him from the trust account of the first and second defendants, Giles Payne & Co, being the proceeds of sale of the matrimonial home of the plaintiff and the third defendant, Rena Wilson, now separated.
At the conclusion of the hearing, I granted liberty to the parties, should they wish to seek any order for costs in respect of the husband’s motion, to provide written submissions. The parties agreed that any question of costs may be decided on the papers. I have since received submissions from Giles Payne & Co and the wife, each seeking an order that their costs of the motion be paid on an indemnity basis and payable forthwith. I have received no submissions in reply from the husband. These reasons assume familiarity with Wilson v Gilles.

Facts

Giles Payne & Co was initially retained by the husband and wife to act on the sale of their former matrimonial home in circumstances where they had separated. The husband and wife gave instructions that the proceeds of sale be…

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 Wilson v Gilles (No 2)

Details

AGLC: Wilson v Gilles (No 2) [2020] NSWSC 658
Case: [2020] NSWSC 658
Decision Date: 01 June 2020

CaseChat Overview and Summary

In the case of Wilson v Gilles (No 2), the matter was heard in the Family Court of Australia, where the dispute involved the allocation of costs. The wife, a party to the proceedings, sought indemnity costs from her former solicitors, who had previously acted for both her and her husband. The solicitors held trust monies for both parties, which led to a conflict of interest and non-compliance with the Law Society's ethical guidelines. This non-compliance was the catalyst for a failed motion by the husband. The court was tasked with determining whether the solicitors were entitled to seek indemnity costs from the wife, given the circumstances surrounding the trust monies and the ethical breach.

The primary legal issue before the court was whether the solicitors were justified in claiming indemnity costs from the wife, considering the ethical breach and the circumstances surrounding the trust monies. The court needed to assess the solicitors' conduct in relation to the trust monies and determine if their actions warranted an indemnity costs order. Additionally, the court had to consider the impact of the ethical breach on the husband's failed motion and whether this played a role in the decision regarding costs.

The court concluded that the solicitors' conduct did not warrant an indemnity costs order against the wife. The ethical breach, which involved the handling of trust monies and non-compliance with the Law Society's guidelines, was a significant factor in the court's decision. The court held that the solicitors' failure to follow ethical standards and the resulting conflict of interest undermined their position in seeking indemnity costs. Consequently, no costs orders were made against the wife. The court's decision emphasised the importance of adhering to ethical guidelines and the potential consequences of failing to do so.

Orders