STAFFORD v TABER [1994] NSWCA 293

STAFFORD v TABER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and SHELLER JJA 31 October 1994

[1994] NSWCA 293

LEGAL PRACTITIONERS — solicitor — failure to prosecute appeal with due diligence — abandonment of appeal on day of hearing — appellant and solicitor required by Court to attend court — held; Solicitor should personally pay two-thirds of respondent's costs

TESTATOR'S FAMILY MAINTENANCE - TFM Act claim — claim belatedly abandoned — apparent neglect of prosecution of appeal and of appellant's interests — held; Appellant's solicitor to pay two-thirds of respondent's costs personally

LEGAL PRACTITIONERS — SOLICITORS — personal liability for costs — apparent neglect of proper prosecution of appeal — belated application on return date of appeal for order that appeal be dismissed with respondent's costs assessed at $6,000 — Court of Appeal requires solicitor and appellant to attend to explain circumstances — appellant states lack of content by solicitors until eve of hearing of appeal — belated instruction secured to submit to dismissal of appeal with costs of $6,000 — held (Kirby P; Handley JA and Sheller JA concurring) (1) Having regard to the statement of the appellant and the inferences to be drawn from the absence of evidence from the solicitor, the respondent's costs of the appeal should be paid as to two-thirds by the solicitor and no costs after the call-over should be payable by the appellant to his solicitors; (2) The papers should be referred to the Law Society for investigation.

TESTATOR'S FAMILY MAINTENANCE — TFM Act claim — belated claim by son in respect of estate of mother left entirely to daughter — appeal abandoned on day of hearing — proper order as to costs — held: in the circumstances the solicitor and the appellant were required to attend Court to explain the apparent neglect and belated abandonment of the appeal.