New South Wales Court of Appeal CITATION : Conder v Silkbard No 2 [2000] NSWCA 317 FILE NUMBER(S) : CA 40344/98 HEARING DATE(S) : On the papers JUDGMENT DATE : 6 November 2000 PARTIES : Michael James Conder Silkbard Pty Limited JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 10 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 12013/95 FILE NUMBER(S) : LOWER COURT Bruce J JUDICIAL OFFICER : COUNSEL : Appellant: M Orlov Respondent: J C Campbell QC/S W Climpson SOLICITORS : Appellant: Messrs Gray & Perkins Respondent: Anne Finerty CATCHWORDS : Costs - misconceived summons LEGISLATION CITED : Legal Profession Act 1987 (NSW) CASES CITED: Latoudis v Casey (1990) 170 CLR 534 DECISION : Respondent to pay the appellants' costs of the summons THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40344/98 CL 14163/91 MEAGHER JA BEAZLEY JA FITZGERALD JA Monday, 6 November 2000 CONDER & Ors v SILKBARD PTY LIMITED (NO 2) JUDGMENT 1 MEAGHER JA: I agree with Beazley JA. 2 BEAZLEY JA: The Court delivered judgment in this matter on 10 December 1999, dismissing the appeal and also dismissing the Summons in the court below. No order was made as to costs of the Summons and the appellant was given liberty to challenge the trial judge's order as to costs. 3 The background of the matter was, briefly, that the appellants, a firm of solicitors, had brought proceedings in the Local Court against the respondent, a former client, to recover legal costs they claimed the respondent owed. They failed to deliver a bill of costs prior to the commencement of the proceedings as required by s 192 of the Legal Profession Act 1987 (NSW) (the LPA). 4 The respondent brought proceedings in the Supreme Court seeking an order that the appellants deliver a bill of costs pursuant to s 209C of the LPA and that the Local Court proceedings be stayed pending delivery of the bill. 5 In its judgment this Court determined that those proceedings were misconceived. 6 The appellants submit that they are entitled to costs in the ordinary course, costs being awarded to a successful party to indemnify against the expense to which it has been put by reason of legal proceedings: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 542-543. McHugh JA observed at 568 that "the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case". 7 Counsel for the appellants submitted that there were "no circumstances connected with the proceedings" whereby it should not receive its costs in the ordinary course. In particular, counsel relied upon the fact that the appellants had not brought the proceedings upon themselves by their failure to issue a bill of costs before commencement of the Local Court proceedings. This was because it was the appellants' position, inter alia, in the Local Court proceedings, that the respondent had waived its entitlement to a bill. 8 There is merit in that submission. But in any event, I consider that the appellants should have their costs of the Summons. The respondent brought the Summons as a counter-proceeding to the claim being made against it in the Local Court. In doing so, it misunderstood the legislation governing its rights and thus failed on its Summons. There is no reason why the appellants should not have its costs of the respondent's failed Summons. 9 Accordingly, in addition to the orders made on 10 December 1999, I propose that the respondent pay the appellants' costs of the Summons. 10 FITZGERALD JA: When judgment was delivered in this matter on 10 December last year, I expressed the opinion that the respondent should pay the costs of the appeal, which this Court allowed, and of the respondent's summons, which this Court ordered be dismissed. 11 There is nothing in the respondent's subsequent written submissions which has caused me to change that opinion. Even if the appellants approach before the trial judge was flawed, the foundation of this unnecessary litigation was the respondent's misconceived and unsuccessful summons. 12 I agree with the orders proposed by Beazley JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.