McHugh & Anor v Eastern Star Gas Ltd & Ors [2012] NSWCA 169

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McHugh & Anor v Eastern Star Gas Ltd & Ors [2012] NSWCA 169 Hearing dates: 22 May 2012 Decision date: 08 June 2012 Before: Bathurst CJ at [1] Macfarlan JA at [2] Whealy JA at [3] Decision: (1) Leave to appeal is granted. (2) The appeal by Michael McHugh and ACN 109 532 630 Pty Ltd is allowed. (3) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Eastern Star Gas Ltd of the proceedings in the Narrabri Mining Warden's Court on an indemnity basis is set aside. (4) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay 50% of the costs of Ronald and Dean Von Harten of and incidental to their motion filed on 23 June 2009 in the Narrabri Mining Warden's Court on an indemnity basis is set aside. (5) The order that Michael McHugh and ACN 109 532 630 Pty Ltd pay the costs of and incidental to the hearing before the primary judge, being the costs of Eastern Star Gas Ltd and of Dean and Ronald Von Harten is set aside. (6) Order that Eastern Star Gas Ltd, Dean Von Harten and Ronald Von Harten pay the costs of and incidental to the hearing before the primary judge (save and except for the costs of and incidental to the preparation of the Court Book). (7) Eastern Star Gas Ltd is to pay the appellants' costs of the appeal. (8) Dean and Ronald Von Harten are to have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - CIVIL - costs of Mining Warden proceedings - proceedings commenced without authority - ratification of solicitor's retainer - solicitor acting outside of instructions - whether solicitor personally liable for costs of third party - source of power to order costs - Civil Procedure Act (2005) s98, s99.