Woodward v Woodward (No. 2) - [2015] NSWSC 362

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Woodward v Woodward & Anor (No. 2) [2015] NSWSC 362
Hearing dates: 10 March 2015
Date of orders: 02 April 2015
Decision date: 02 April 2015
Jurisdiction: Common Law
Before: Slattery J
Decision:
See paragraph [45] of judgment.

Catchwords: LEGAL PRACTITIONER – costs – where defendants had been ordered to pay plaintiff’s costs thrown away due to adjournment of hearing – where solicitors instructed by defendants did not file a notice of appearance or a notice of ceasing to act – where solicitors communicated to plaintiff that they acted for defendants – where solicitors withdrew representation 13 days before hearing, causing adjournment – whether to order solicitors to pay defendants costs under Civil Procedure Act 2005, s 99 – apportionment of costs between solicitors and defendants
Legislation Cited: Civil Procedure Act 2005 (“CPA”), ss 98, 99
Uniform Civil Procedure Rules (“UCPR”), rr 7.27, 7.29
Cases Cited: Harris v Villacare Pty Ltd [2012] NSWSC 452
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155
Ireland v Retallack (No 2) [2011] NSWSC 1096
Kelly v Jowett (2009) 76 NSWLR 405
Kendirjian v Ayoub [2008] NSWCA 194
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Myers v Elman [1940] AC 282
Re Jones (1870) LR 6 Ch 497
Ridehalgh v Horsfield [1994] Ch 205
Woodward v Woodward & Anor [2015] NSWSC 99
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Costs
Parties: Plaintiff: Stephen James Woodward
Representation:
Counsel:
Plaintiff: R. Winfield
First and Second Defendants: E. Yam
Messrs Bilbie Dan: T. Hale SC
Solicitors:
Plaintiff: Paul Gowran, Paul Gowran & Co Solicitors
First and Second Defendants: Stephen John Churches, Armstrongs Solicitors Pty Limited

File Number(s): 2014/170245
Publication restriction: No

Judgment

This is the second judgment in these proceedings. The reasons for the first judgment are recorded in Woodward v Woodward [2015] NSWSC 99. In that ex tempore judgment, the Court adjourned the proceedings due to the defendants’ conduct and consequently ordered the defendants to pay into court $10,000, being the plaintiff’s costs thrown away due to the adjournment. I foreshadowed that Messrs Bilbie Dan may be liable for the costs of the plaintiff, and ordered Bilbie Dan to show cause as to why they should not personally bear the whole or some part of the plaintiff’s costs thrown away by reason of the adjournment. This judgment concerns the allocation of the liability to pay the plaintiffs’ costs between the defendants, Tyrone and Sharon, and Messrs Bilbie Dan, who had communicated to the plaintiff’s solicitor that they were instructed by the defendants.
This judgment should be read with my earlier judgment. Events, matters and persons are referred to in both judgments in the same way. It is not necessary to recount all the facts in this judgment. Ms E. Yam appeared for the defendants. Mr Hale SC appeared for Messrs Bilbie Dan.
In the first judgment I did not set out the relevant correspondence between the…

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.

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Details

Case: [2015] NSWSC 362
Decision Date: 02 April 2015

CaseChat Overview and Summary

The matter before the court involved an application for costs under the Civil Procedure Act 2005, section 99. The parties were the plaintiff, Woodward, and the defendants, also Woodward. The dispute centred on the costs incurred by the plaintiff due to an adjournment of the hearing, which arose because the defendants' solicitors did not file a notice of appearance or a notice of ceasing to act, and communicated to the plaintiff that they were acting on behalf of the defendants before withdrawing their representation 13 days before the hearing. The plaintiff sought an order that the defendants' solicitors pay their costs thrown away due to the adjournment.

The primary legal issue before the court was whether the solicitors could be ordered to pay the defendants' costs under the Civil Procedure Act 2005, section 99. The court also needed to determine the apportionment of costs between the solicitors and the defendants. The court examined the conduct of the solicitors and the impact of their actions on the adjournment of the hearing and the plaintiff's costs.

The court found that the solicitors' conduct warranted an order for costs under the Civil Procedure Act 2005, section 99. The court noted that the solicitors had misled the plaintiff by communicating that they were acting on behalf of the defendants before withdrawing their representation, which directly caused the adjournment of the hearing and the plaintiff's costs. The court further held that the costs should be apportioned between the solicitors and the defendants, with the solicitors bearing a significant portion of the costs due to their misleading conduct. The court did not find it necessary to apportion any costs to the defendants, as their conduct did not contribute to the plaintiff's costs.

The court ordered the solicitors to pay the defendants' costs thrown away due to the adjournment of the hearing, and apportioned the costs between the solicitors and the defendants, with the majority of the costs borne by the solicitors. The court did not make any orders against the defendants as their conduct did not contribute to the plaintiff's costs.

Orders