Tetbury Pty Ltd v Mahony trading as Mahony Law [2024] NSWSC 446

Supreme Court New South Wales

Medium Neutral Citation: Tetbury Pty Ltd v Mahony trading as Mahony Law [2024] NSWSC 446 Hearing dates: 9 February 2024, 19 March 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The orders sought by Tetbury be refused and the proceedings dismissed; and (2) Unless the parties approach with short written submissions about costs within 14 days, Tetbury is to pay Mr Mahony's costs, as agreed or assessed. Catchwords: COSTS – solicitor/client – costs agreement – costs assessed under Legal Profession Act 2004 (NSW) – binding costs certificate issued – unsuccessful appeal on questions of law – costs judgment entered – application to set aside costs judgment under r 36.15 of Uniform Civil Procedure Rules 2005 (NSW) – whether costs judgment was entered irregularly or in bad faith – whether plaintiff liable to pay assessed costs – application based on claimed misconduct considered on both assessment and appeal – plaintiff liable to pay assessed costs – costs judgment not entered irregularly or in bad faith – order refused and proceedings dismissed CIVIL PROCEDURE – jurisdiction – supervisory jurisdiction of legal practitioners – order setting aside the costs judgment where plaintiff is bound by costs agreement and proven judgment debt application to set aside costs judgment under r 36.15 having been refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 73, 91, 133 Corporations Act 2001 (Cth), s 459H(1)(a) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW), ss 319, 359, 361, 384, 385 Legal Profession Uniform Law (NSW) 2014 Legal Profession Uniform Law Application Act 2014 (NSW), s 70 Uniform Civil Procedure Rules 2005 (NSW), r 36.10, r 36.15 Cases Cited: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 Bingham v Bevan [2023] NSWCA 186 Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales [2024] NSWSC 296 Branson v Tucker [2012] NSWCA 310 Calandra v Murden [2015] NSWCA 231 Coshott v Barry [2012] NSWSC 850 Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46 Doyle v Hall Chadwick [2007] NSWCA 159 Hartnett (t/as Hartnett Lawyers) v Bell [2023] NSWCA 244 In the matter of Tetbury Pty Ltd [2017] NSWSC 37 In the matter of Tetbury Pty Ltd [2022] NSWSC 1670 Khoury & Anor v Hiar & Anor [2006] NSWCA 47 Legal Profession Conduct Commissioner v Radin (2014) 118 SASR 349; [2014] SASCFC 1 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Reznitsky v District Court of New South Wales [2015] NSWCA 194 Tetbury Pty Ltd v John Francis Mahony trading as Mahony Law (District Court (NSW), 16 December 2020, unrep) Tetbury Pty Ltd v John Francis Mahony trading as Mahony Law [2021] NSWDC 691 Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382 Tjiong v Tjiong [2021] NSWSC 1389 Category: Principal judgment Parties: Tetbury Pty Ltd (Plaintiff) John Mahony trading as Mahony Law (Defendant) Representation: Counsel: M Gracie (Plaintiff) A Maroya (Defendant)