McIvor v Battersby [2013] NSWSC 1138

Supreme Court New South Wales

Medium Neutral Citation: McIvor v Battersby [2013] NSWSC 1138 Hearing dates: 9 August 2013 Decision date: 09 August 2013 Jurisdiction: Equity Division Before: White J Decision: Refer to para [9] of judgment. Catchwords: PROCEDURE - costs - recovery of costs - defendant revoked authority to receive funds from former solicitors - former solicitors had lien over verdict moneys to secure costs properly payable - former solicitors were cause of proceedings regarding verdict moneys - whether former solicitors should indemnify defendant for costs payable by her to plaintiff - whether former solicitors should pay defendant's costs of the proceedings Category: Costs Parties: Emily McIvor (Plaintiff) Jeanette Ruby Battersby (Defendant) Representation: Counsel: D Predny, solicitor (Defendant) M Vincent, solicitor (3rd Party) Solicitors: Fowler Predny (Defendant) File Number(s): 2013/123552

Judgment 1HIS HONOUR: On 12 July 2013 Rein J ordered the defendant to pay the plaintiff's costs on an indemnity basis out of the legacy otherwise payable to her. 2Today the defendant seeks two orders against Bale Boshev Lawyers. First, that that firm indemnify her against the costs payable by her to the plaintiff to be deducted from the legacy that is to be paid to her current solicitors and, secondly, that Bale Boshev pay her costs of the proceedings. 3On 14 January 2013, the defendant's current solicitors, Fowler Predny, offered to Bale Boshev to undertake to retain the judgment moneys if those moneys were paid to that firm until the question of Bale Boshev's costs was resolved. 4The position clearly was that the authority that the defendant had given Bale Boshev for it to receive funds had been revoked, and that a new authority authorising Fowler Predny to receive the verdict moneys had been given. On the other hand, it should also have been clear to the parties that Bale Boshev was entitled to a lien over the verdict moneys to secure the amount of costs properly payable by the defendant to that firm. If the offer from Fowler Predny of 14 January 2013 had been accepted, that would have stopped the plaintiff's costs from running. The plaintiff would not have been required to file the summons and supporting affidavit for the payment of moneys into court. 5On the other hand, by Fowler Predny's letter of 18 April 2013 on behalf of the defendant, that firm asserted that Bale Boshev solicitors' lien did not extend to the verdict moneys. That position was clearly incorrect. Ultimately it was not adhered to. The substantive issue was resolved by consent orders and an undertaking given by Fowler Predny that the verdict moneys would be paid into a controlled moneys account and retained there pending satisfaction of the solicitors' lien claimed by Bale Boshev for their costs. Those costs are yet to be assessed. They are a matter of dispute. 6The dispute about the quantum of their costs is not relevant to the present application. In my view Bale Boshev was the party that was responsible for the plaintiff incurring her costs of these proceedings for payment into court and the offer by Fowler Predny in their letter of 14 January 2013 should have been accepted. 7Accordingly, Bale Boshev should indemnify the defendant against the costs payable by her to the plaintiff. On the other hand, the defendant was maintaining a position as against Bale Boshev in relation to its claim for a lien that she ultimately rightly abandoned. 8In those circumstances it is not appropriate that Bale Boshev pay the defendant's own costs of these proceedings. Bale Boshev does not seek any order for its costs of these proceedings against the defendant. Nor in all the circumstances would I have been prepared to make such an order. 9Accordingly, I make the following orders: 1. Order that Peter Bale, George Boshev and Scott Bryant be joined as second defendants to the proceedings. 2. Order that the second defendants indemnify the first defendant in respect of the costs payable by the first defendant to the plaintiff that are to be deducted from the moneys to be paid to the first defendant's solicitors by the plaintiff. 3. Make no other order as to costs as between the first and second defendants to the intent that those parties each bear their own costs of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2013