FOWLER, CORBETT and JESSOP trading as HAYDON FOWLER CORBETT JESSOP v TORO CONSTRUCTIONS PTY LTD [2008] NSWCA 178

New South Wales Court of Appeal

CITATION: FOWLER, CORBETT and JESSOP trading as HAYDON FOWLER CORBETT JESSOP v TORO CONSTRUCTIONS PTY LTD [2008] NSWCA 178

HEARING DATE(S): 11 April 2008

JUDGMENT DATE: 5 August 2008

JUDGMENT OF: McColl JA at 1; Basten JA at 2; Young CJ in Eq at 90

(1) Grant leave to appeal, direct the applicant to file its draft notice of appeal and, conditional on that step being taken, allow the appeal. (2) Set aside orders 1, 2, 3 and 5 made in the District Court in matter no. 1466 of 2005 on 24 April 2007. (3) In lieu thereof, dismiss the motion of Toro Constructions Pty Ltd for costs payable by the former solicitors for Brian Fox. DECISION: (4) Order Toro Constructions Pty Ltd to pay the costs of: (a) its motion in the District Court with respect to the orders set aside, and (b) the application and appeal in this Court. (5) Grant Toro Constructions Pty Ltd a certificate under the Suitors' Fund Act 1951 (NSW) if not disqualified under s 6(7).

CATCHWORDS: COSTS – legal practitioner personally liable for costs – costs on indemnity basis – joinder of party – whether reasonable prospects of success – whether material available for making claim against party – uncertainty about involvement of a party – investigations to ascertain party's involvement – purpose of costs order against legal practitioner – risks involved in litigation relating to costs orders against legal practitioners – Legal Profession Act 2004 (NSW) ss 345, 347, 348 - LAWYERS – costs of litigation – costs payable by lawyers for unsuccessful party – Legal Profession Act 2004 (NSW) s 348 - STATUTORY INTERPRETATION – without reasonable prospects of success – provable fact – purposive interpretation – Legal Profession Act 2004 (NSW) ss 345, 348 - WORDS & PHRASES – "provable fact" – "without reasonable prospects of success"