Dempster v McAndrew [2003] NSWSC 994

New South Wales Supreme Court

CITATION : Dempster v McAndrew [2003] NSWSC 994 HEARING DATE(S) : 10 June 2003 JUDGMENT DATE : 10 June 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Costs orders made as described in catchwords

CATCHWORDS : PROCEDURE - costs - failure of city agent to notify principal of hearing date - hearing date wasted - order for payment of costs by legal practitioner under Part 52A Rule 43- order for costs payable forthwith under Part 52A Rule 9 - no order refusing re-listing until costs paid Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 Hellen & Fordyce v Alex G Grivas Pty Limited [2002] NSWSC 1019 CASES CITED : Johnson v DOCS (No.2) [1999] NSWSC 1251 Preston v M D Nikolaidis & Co [2003] NSWSC 72 Wilson v State of New South Wales [2001] NSWSC 1165 PARTIES : Ruve Elizabeth Dempster - Plaintiff John Allan McAndrew as Executor of Estate of Clarice Jessie Shaw - Defendant FILE NUMBER(S) : SC 5181/02 COUNSEL : R D Wilson - Plaintiff N Francey - Defendant SOLICITORS : Quinn & Quinn, City Agents for Lawrence W Hewitt - Plaintiff F J Smith & Co - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

TUESDAY 10 JUNE 2003

5181/02 RUVE ELIZABETH DEMPSTER v JOHN ALLAN McANDREW AS EXECUTOR OF THE ESTATE OF CLARICE JESSIE SHAW JUDGMENT – Ex Tempore 1 HIS HONOUR: On 22 May 2003 this matter was listed for hearing before me as a short notice matter. The matter was called on for hearing and no one appeared for the plaintiff. I recorded the events of that day in a judgment which I delivered on 22 May 2003. 2 Since then both sides have put on evidence to explain how it happened that the plaintiff did not appear. There is really no dispute about what happened, in the light of those affidavits. 3 The matter had been placed in the short notice list of the court on 25 March 2003. That was an event which Mr Quinn, the Sydney agent for Mr Hewitt, (the solicitor with primary conduct of the matter) notified to Mr Hewitt. 4 On 9 May 2003 an officer from the Registry telephoned Mr Quinn's office and informed a secretary there that the matter had been given a hearing date in the short notice list for 22 May. That secretary wrote in Mr Quinn's court diary an entry on the page concerning 22 May saying: "Supreme Court – Dempster & McAndrew (agency for L Hewitt)" and then the word "HEARING". She did not draw the attention of Mr Quinn specifically to that entry. 5 Mr Quinn noticed the diary entry, a day or two before 22 May 2003, and thought nothing of it as it seemed to him that his involvement in the proceedings had not changed. He had reported on the matter being placed in the short notice list in a letter to Mr Hewitt on 26 March 2003, and concluded: "It appears that our involvement in the matter is now at an end and accordingly we enclose our Statement of Account for Professional Fees and Disbursements/Tax Invoice." 6 Notwithstanding the way it appeared to Mr Quinn, as expressed in that letter, his involvement in the matter was not at an end. His firm remained on the record as the solicitors where service could be effected. Consequently, it was to that address that the court gave notice of the hearing on 9 May 2003. That notification was not passed on to Mr Hewitt, with the consequence that the hearing date on 22 May was wasted, both so far as the court was concerned and so far as the defendant was concerned. 7 In these circumstances, it is appropriate that there be an order that the costs thrown away by reason of the matter not proceeding on 22 May 2003 be paid from within the plaintiff's camp. This is an occasion where it is appropriate to use the power of the court under Pt 52A r 43, and order that those costs be payable by Mr Quinn. 8 The defendant seeks that the order for costs be made on an indemnity basis. It seems to me that that is likewise an appropriate order. 9 The defendant seeks an order that under Pt 52A r 9 the costs be payable forthwith. The usual circumstances which justify costs orders being not paid until the conclusion of proceedings (Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; Johnson v DOCS (No.2) [1999] NSWSC 1251; Hellen & Fordyce v Alex G Grivas Pty Limited [2002] NSWSC 1019 at [25]; Preston v M D Nikolaidis & Co [2003] NSWSC 72 at [13]-[21]; Wilson v State of New South Wales [2001] NSWSC 1165) do not apply in the present case, where it is not one of the parties who is required to bear that order for costs, but a solicitor. Hence, it is appropriate for there to be an order that those costs be payable forthwith. 10 Another order which the defendant seeks is an order that the plaintiff not be permitted to have the matter re-listed until the costs were paid. This order is not an appropriate order when the default does not arise from the plaintiff's own conduct. I decline to make it. 11 In support of this application submissions were made that the case was a hopeless one, and concerning assets worth $400. I will not enter into the detail of that submission, save only to say that it does not appear to me that the case is a hopeless one. 12 The orders of the court are that David Quinn, solicitor, pay the costs, on an indemnity basis, thrown away by reason of the matter not proceeding on 22 May 2003. I order that those costs may be assessed and made payable forthwith. 13 I direct that the matter be placed in the short notice list. **********