Rickard Constructions Pty Limited v Doyle [2003] NSWSC 585

New South Wales Supreme Court

CITATION : Rickard Constructions Pty Limited v Doyle [2003] NSWSC 585 HEARING DATE(S) : 7 February, 17 March 2003 JUDGMENT DATE : 30 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). I order that the Plaintiff pay the costs of the Defendant, such costs to include the costs of and incidental to the application in respect to costs.; (2). The exhibits may be returned.

CATCHWORDS : Costs - Substantive proceedings were resolved - No hearing on merits - Whether Defendant is entitled to costs order against Plaintiff - Court cannot try a hypothetical action between the parties - Whether Plaintiff acted reasonably in commencing the proceedings and whether Defendant acted reasonably in defending the proceedings. LEGISLATION CITED : Legal Profession Act 1987 CASES CITED : Major Projects Pty Limited v Sybmark Pty Limited (19 February 1992, unreported) Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 PARTIES : Rickard Constructions Pty Limited (Plaintiff) James Patrick Doyle (Defendant) FILE NUMBER(S) : SC 2015/02 COUNSEL : K. Odgers (Plaintiff) J.P. Doyle (solicitor), Defendant, in person SOLICITORS : Maurice Blackburn Cashman Lawyers (Plaintiff) Doyles Construction Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 30 June 2003

2015 of 2002 RICKARD CONSTRUCTIONS PTY LIMITED -v- JAMES PATRICK DOYLE JUDGMENT 1 MASTER: These proceedings were instituted by summons filed on 25 March 2002 by Rickard Constructions Pty Limited (Subject to Deed of Company Arrangement). The Defendant named in that summons is Jim Doyle. It would, however, appear that the correct name of the Defendant is James Patrick Doyle (who in his affidavit evidence describes himself as the director of "Doyles Construction Lawyers"). 2 By that summons the Plaintiff sought an order that the Defendant deliver to the Plaintiff originals or copies of certain documents (which were then described or otherwise identified), and a declaration in the following terms, A declaration that the Defendant is not entitled to maintain possession and or lien over the documents referred to in prayer 1 above. 3 On 5 September 2002 the matter came before Young CJ in Eq, who noted that the matter had settled except as to costs. 4 The hearing before me was in respect to those costs. 5 The Defendant sought an order that the Plaintiff should pay the costs of the Defendant of the proceedings. The Plaintiff submitted that there should be no order as to the costs of the proceedings, to the intent that each party should bear its or his own costs thereof and that the only costs order should be in respect to the present application. 6 I have had the benefit of receiving written outlines of submissions from the legal representatives of the Plaintiff and from the Defendant (who is a solicitor, and who represented himself at the hearing before me). Those written submissions will be retained in the Court file. 7 In order to understand the basis upon which the Defendant seeks an order that his costs be paid by the Plaintiff and the basis upon which the Plaintiff seeks to resist such an order, it is appropriate that I should set forth, at least in summary, the factual circumstances which have given rise to the present proceedings. 8 The Plaintiff is a former client of the Defendant, whom the Plaintiff retained to act for it in proceedings 55027 of 2000 in the Construction List of this Division of the Court (which proceedings have been referred to in the written submissions and in affidavit evidence as "the Proceedings" or "the Concurrent Proceedings": the latter description is probably less ambiguous). 9 The Defendant ceased to act for the Plaintiff on 19 April 2001. Since at least March 2001 there had been what might be described as a dispute between the parties concerning the costs which the Defendant was charging for his professional services. 10 It was in consequence of a meeting attended by Mr Charles Rickard, the principal of the Plaintiff and the Defendant on 29 March 2001 that the retainer of the Defendant by the Plaintiff was terminated. 11 There is a dispute between the parties as to whether at the meeting on 29 March 2001 the termination of the Defendants retainer was effected by consent of the parties, or whether it was a unilateral termination effected by the Plaintiff. 12 Pursuant to that termination of his retainer, the Defendant on 19 April 2001 filed a Notice of Ceasing to Act. 13 The Plaintiff on 1 June 2001 filed an application for assessment of costs, and subsequently the Court appointed Mr Leonard S. Hattersley as the Costs Assessor. Before the Costs Assessor had concluded his assessment orders were made concerning inspection of documents in the Concurrent Proceedings. It is asserted on behalf of the Plaintiff that at that time the Defendant had failed to make available documents of the Plaintiff which, pursuant to the foregoing orders, the Plaintiff was required to make available for inspection by the other parties in the Concurrent Proceedings. An offer was made by the Plaintiff on 9 April 2002 that it would pay a certain amount to the Defendant in return for documents which the Plaintiff asserted were being held by the Defendant. That offer was rejected by the Defendant. 14 On 24 April 2002 the costs properly payable by the Plaintiff to the Defendant were assessed by the Costs Assessor at $51,667.79. Subsequently, on 3 May 2002, the Plaintiff pursuant to Part 51A Rule 5 of the Supreme Court Rules appealed against the entirety of the assessment by the Costs Assessor. That appeal was dismissed with costs by Master Malpass on 27 September 2002. 15 It is relevant to the present application as to costs that when the Plaintiff originally retained the Defendant, it entered into a costs agreement with the Defendant on 19 January 2000, to which costs agreement was attached a document described as the Defendant's "Costs Agreement: Standard Clauses". That document contains the following (as clause 2 on page 3, headed "Ownership of File"), We reserve our right to a lien over the documents used for the matter and require a charge over the proceeds of any claim we have pursued on your behalf from the time of receipt or from the time of our notice to you, for your payment of any costs and disbursements on all matters.