Blueprint Property & Finance Pty Ltd & Anor v J D Holdings Pty Ltd & Ors [2002] NSWSC 391

New South Wales Supreme Court

CITATION : Blueprint Property & Finance Pty Ltd & Anor v J D Holdings Pty Ltd & Ors [2002] NSWSC 391 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2289/01 HEARING DATE(S) : 3 May 2002 JUDGMENT DATE : 3 May 2002

Blueprint Property & Finance Pty Ltd - formerly known as Saxby Bridge Property & Finance Pty Ltd BPCF Pty Ltd - formerly known as Saxby Bridge Corporate Finance Pty Ltd PARTIES : J D Holdings Pty Ltd John Davies Peter Smirneos Harris Marcelo Gomez t/a Lyon Law Firm JUDGMENT OF : Davies AJ at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 2289/01 FILE NUMBER(S) : LOWER COURT McLaughlin M JUDICIAL OFFICER :

COUNSEL : Mr T Blackburn for the Fourth Defendant SOLICITORS : Philip Densham White Solicitor & Barrister for the Appellants Ebsworth & Ebsworth Solicitors for the Fourth Defendant CATCHWORDS : Costs - no question of principle LEGISLATION CITED : Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) DECISION : 1. Appeal by both plaintiffs dismissed; 2. Application for indemnity costs refused; 3. Respondents' costs of the appeal to be paid by the appellants.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Davies AJ

Friday, 3 May 2002

2289 / 01 Blueprint Property & Finance Pty Limited - formerly known as Saxby Bridge Property & Finance Pty Limited & Anor v J D Holdings Pty Limited & Ors Judgment 1 His Honour: This is an appeal from a decision of Master McLaughlin, who ordered that the claims against the fourth defendant be dismissed. The substance of the Master's reasoning was that the fourth defendant is a firm of solicitors who acted merely in the capacity of solicitors and whose actions did not attract any liability under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. 2 The appeal has not been pursued today and, accordingly, the appeal should be dismissed. The respondents to the appeal are entitled to an order for costs. 3 It has been submitted by the solicitor for the appellants that the order for costs should be made only against Blueprint Property & Finance Pty Limited, which is the first plaintiff, and that it was only that plaintiff that sought relief against the fourth defendant. However, the motion heard below was directed to both plaintiffs and the matter appears to have been dealt with by the Master on the footing that both plaintiffs were interested in the matter. In any event, no distinction appears to have been drawn. 4 It is clear from the Master's reasons that he considered that both plaintiffs had an interest in the relief sought. If one looks at the amended statement of claim, it is not patent that both plaintiffs did not have an interest in the claims against the fourth defendant. Those claims were certainly referred to specifically in the claim for relief by the first plaintiff and not specifically referred to in the claim for relief by the second plaintiff, but it is not clear that the claims were not something being put forward by both plaintiffs. 5 Both plaintiffs appealed from the Master's decision. It seems to me that the order should be that the appeal by both appellants be dismissed, and accordingly, that the order as to costs should be directed to both appellants. 6 I have been asked by counsel for the defendants below, who are the respondents in the appeal, to order indemnity costs. I do not think it would be useful for me to deal at any length with the issue of indemnity costs. It is clear that the usual rule as to costs is that costs be awarded on a party / party basis unless the circumstances of the case justify an order for indemnity costs. 7 I regard the issue as to whether actions taken by solicitors in the course of their practice are actions which may attract liability under the Trade Practices Act and the Fair Trading Act as a matter which is arguable, depending, of course, on the circumstances of the particular case. 8 It does not seem to me, from the reasons given by the Master, that I could readily conclude that the claim against the fourth defendant ought never to have been instituted. I am not suggesting that the Master was not correct; but there is nothing in the subject matter of the Master's ruling or in his reasons which lead me to the conclusion that what was argued was a point the dismissal of which was likely to attract indemnity costs. 9 Accordingly, I refuse the application for indemnity costs and simply order that the respondents' costs of the appeal be paid by the appellants. -oOo-