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Wood v Inglis

Wood v Inglis

Case [2010] NSWSC 749 4 March 2010

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CITATION: Wood v Inglis [2010] NSWSC 749

HEARING DATE(S): 4 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 4 March 2010

DECISION: Second and fourth cross-defendants to pay costs of cross-claimant in respect of notice of motion filed 16 July 2008. Interest at the rate of 7.5 per cent to be payable on that proportion of each amount of costs and disbursements which the costs creditor has paid or was liable to pay as between practitioner and client.

CATCHWORDS: PROCEDURE – Costs – Whether costs should be borne by company where its solicitor acted without proper retainer – Held: costs should be borne by the directors or purported directors of the company who had set in motion the retainer of the solicitor – interest on costs – Held: Interest to be payable at the rate of 7.5 per cent per annum on any amount payable under the costs order until the costs debtor has paid the amount due to the costs creditor.

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 101
(NSW) Uniform Civil Procedure Rules 2005 r 42.3.2
(NSW) Supreme Court Act 1970, s 76, s 95

CATEGORY: Consequential orders

CASES CITED: Abigroup v Peninsular (No 2) (2001) NSWSC 1016
Drummond and Rose Pty Ltd v Easey & ors [No 2] [2009] NSWCA 331
Hexiva Pty Ltd v Lederer (Costs) [2006] NSWSC 1259
Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126
Sanum-Kehlbeck GMBH & Co KG v Sanum Australia Pty Ltd [2009] NSWSC 690
Wood v Inglis (Costs) [2009] NSWSC 900

PARTIES: First Cross Claim:
Helen Margaret Inglis (cross-claimant)
Inglis Research Trust P/L (first cross-defendant)
Kathryn Margaret Clark (second cross-defendant)
Michael William Inglis (third cross-defendant)
Pamela Ruth Wood (fourth cross-defendant)
Fiona Jane Narlini Inglis (fifth cross-defendant)
William Keith Inglis (sixth cross-defendant)

FILE NUMBER(S): SC 08/277523

COUNSEL: Mr JE Thomson (cross-claimant)
Mr BJ Burke (second cross-defendant)
Mr CA Lambert (third cross-defendant)
Mr ET Finanne (fourth cross-defendant)

SOLICITORS: Michael C Smith (cross-claimant)
Courtenay & Co (second cross-defendant)
Molloy & Schrader (third cross-defendant)
DSC Law (fourth cross-defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALE
EQUITY DIVISION

BRERETON J

Thursday, 4 March 2010

2008/277523 Pamela Ruth Wood v Helen Margaret Inglis

JUDGMENT (ex tempore)

1 HIS HONOUR: In these complex proceedings – which were resolved, in substance, by my judgment of 30 June 2009 – two issues remain for determination. The first is the costs of a motion brought by Mrs Inglis against Inglis Research Pty Ltd, which was determined by Barrett J on 6 November 2008, when his Honour upheld Mrs Inglis’ challenge to the retainer by Inglis Research of ClarkeKann Lawyers, who then purported to appear for Inglis Research in the proceedings. On 5 December 2008, his Honour struck out ClarkeKann’s appearance, and reserved the question of costs of the motion; I must now deal with them.

2 When a solicitor’s retainer is successfully challenged, the ordinary order is that the solicitor who has purported to act without proper authority…

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 Wood v Inglis

Details

AGLC: Wood v Inglis [2010] NSWSC 749
Case: [2010] NSWSC 749
Decision Date: 4 March 2010

CaseChat Overview and Summary

Wood v Inglis involved a dispute between the plaintiff, Wood, and the defendant, Inglis, regarding the allocation of costs incurred due to a solicitor's actions without a proper retainer. The matter was heard in the Supreme Court of New South Wales. Wood sought to hold Inglis, a company, liable for the costs, while Inglis argued that the costs should not be borne by the company but rather by the directors or purported directors who had engaged the solicitor. The court was tasked with determining the appropriate party responsible for the costs and whether interest should be payable on any amount due under the costs order.

The legal issues before the court centred on the proper allocation of costs when a solicitor acts without a valid retainer. Specifically, the court had to decide whether the company, Inglis, should be held liable for the costs incurred by Wood, or if the responsibility should fall on the directors or purported directors who had authorised the solicitor's engagement. Additionally, the court needed to determine the appropriate rate of interest, if any, to be applied on the costs payable under the order.

The court found that the costs should be borne by the directors or purported directors of Inglis who had set in motion the retainer of the solicitor, rather than by the company itself. The reasoning behind this decision was that the company was not the party that authorised the solicitor's engagement, and thus should not be held liable for the costs. The court further held that interest should be payable on any amount due under the costs order at the rate of 7.5 per cent per annum until the costs debtor had paid the amount due to the costs creditor. This decision was based on the statutory provisions governing interest on costs in New South Wales.

The final orders of the court directed that the costs incurred by Wood due to the solicitor's actions without a proper retainer should be borne by the directors or purported directors of Inglis. Interest at the rate of 7.5 per cent per annum was to be applied on any amount payable under the costs order until the costs were fully paid by the costs debtor to the costs creditor.

Orders