Eurobodalla Shire Council v Wells & 2 Ors [2006] NSWCA 5

New South Wales Court of Appeal

CITATION: Eurobodalla Shire Council v Wells & 2 Ors [2006] NSWCA 5 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Written submissions on Notice of Motion

JUDGMENT DATE: 21 February 2006

JUDGMENT OF: Ipp JA at 1

DECISION: (1) Varying the costs order made by this Court on 8 November 2005 (that the Third Respondent [Opponent] pay [the Claimant's] costs of the Third Respondent's [Opponent's] Application for Leave to Appeal which was heard and determined by this Court on 8 November 2005, and in lieu thereof directing the First and Second Respondents [Opponents] pursuant to s 198M of the Legal Profession Act 1987 (NSW), to indemnify [the Claimant] against the whole of the costs payable by [the Claimant] to its legal representatives in respect of and associated with the Third Respondent's [Opponent's] Application for Leave to Appeal which was heard and determined by this Court on 8 November 2005. (2) The [Claimant's] costs of and associated with the claimant's Notice of Motion filed on 30 November 2005 be paid by the First and Second Respondents [Opponents].

CATCHWORDS: LEGAL PRACTITIONERS - costs - application for costs order against barrister and solicitor - s 198M of the Legal Profession Act 1987 (NSW) - discussion of determination that an appeal was "without reasonable prospects of success" - Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 applied. D

Civil Liability Act 2002 (NSW), s 16 LEGISLATION CITED: Legal Profession Act 1987 (NSW), ss 198J, 198M, 198N Supreme Court Act 1970 (NSW), s 46(2)(b)

CASES CITED: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 Medcalf v Mardell [2003] 1 AC 120