Hillig v Darkinjung Pty Ltd & Ors (No 2) [2008] NSWCA 147

New South Wales Court of Appeal

CITATION: Hillig v Darkinjung Pty Ltd & Ors (No 2) [2008] NSWCA 147

HEARING DATE(S): On written submissions

JUDGMENT DATE: 23 June 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; McColl JA at 3

DECISION: 1. As between the claimant/appellant and the first to sixth respondents there be no liability of each to the other as to the costs of the proceedings; 2. Any existing costs orders be vacated between those parties; 3. Appellant to pay the seventh respondent's costs of filing his submitting appearance on 13 March 2007 and the costs he incurred thereafter in that role; 4. Appellant to pay the seventh respondent's costs of the costs application; 5. First respondent to bear its own costs of the costs application; 6. Save as aforesaid, no order as to the costs of the appeal or the proceedings below as between the appellant, the first respondent and the seventh respondent.

CATCHWORDS: PROCEDURE – costs – effect of decision of Court of Appeal that solicitor was retained without authority – whether solicitor should be ordered to pay costs of proceedings – basis on which such an order might be made – held – whether costs should be ordered matter for discretion – solicitor entitled to proceed on basis that issue whether he was properly retained was a matter for judicial determination – s 98(1) and (2) Civil Procedure Act 2005 – Uniform Civil Procedure Rules 2005 42.3. - PROCEDURE – submitting appearance – whether submitter exceeded proper role of submitting party – held – no. - PROCEDURE – whether appellate court can interfere with primary judge's orders where all respondents file submitting appearances without determining whether orders affected by error – held – no. - LEGAL PRACTITIONERS – compliance with court directions.