Hartshorn v Tait (No. 2) [2017] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: Hartshorn v Tait (No. 2) [2017] NSWSC 606 Hearing dates: 10 May 2017 Date of orders: 17 May 2017 Decision date: 17 May 2017 Jurisdiction: Equity Before: Lindsay J Decision: Application for a personal costs order against the plaintiffs' solicitor dismissed with costs. Legislation Cited: Civil Procedure Act 2005 NSW Uniform Civil Procedure Rules 2005 Cases Cited: Xabregas v Owners Strata Plan No. 79205 [2014] NSWSC 1027 Texts Cited: - Category: Costs Parties: Applicant (Defendant): Stephanie Anne Tait Respondent (Solicitor for Plaintiffs): Frederick Laws Representation: Counsel: Applicant: T Cleary Respondent: MS Daniels

Solicitors: Applicant: Bizlaw Respondent: Laurence & Laurence File Number(s): 2013/00255229

Judgment

INTRODUCTION 1. By a notice of motion filed on 30 March 2017 the defendant applies (under section 99 of the Civil Procedure Act 2005 NSW and the inherent jurisdiction of the Court) for orders that the solicitor for the plaintiffs personally pay her costs of the principal proceedings. 2. On 22 March 2017, following determination of a question ordered (pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005) to be separately determined, I ordered that the principal proceedings be dismissed with costs. 3. As events transpired, the proceedings constituted a claim by the plaintiffs that the defendant pay them compensation, be it equitable compensation or common law damages, arising out of arrangements made in connection with, or in the wake of, the first plaintiff's retirement from employment as a solicitor with a legal, and conveyancing, firm practising on the north coast of New South Wales. 4. The separate question, upon which the parties agreed the fate of the whole proceedings turned, was whether the defendant, personally, had signed a deed and an associated contract for the sale of land. 5. In an unreported judgment, I determined that question in the negative and, accordingly, I dismissed the plaintiffs' proceedings. 6. The proceedings took that course in circumstances in which the parties agreed that, pending determination of the separate question, it was not necessary for the Court to consider an application by the defendant to have the plaintiffs' statement of claim struck out or the plaintiffs' application for leave to amend the statement of claim. The form of the statement of claim must be taken as not having been settled. 7. In making an order that the proceedings be dismissed, I ordered that the plaintiffs' pay the defendants' costs of the proceedings, such costs to be assessed on the ordinary basis up to and including 25 November 2013 (a date referable to a Calderbank letter) and thereafter on the indemnity basis. 8. The primary costs order followed the convention (reflected in rule 42.1 of the Uniform Civil Procedure Rules) that "costs follow the event". 9. At the time of making an order for costs against the plaintiffs, on the application of the defendant I reserved to the defendant liberty to apply for an order under section 99 of the Civil Procedure Act 2005 against the solicitor for the plaintiffs. 10. The defendant filed her notice of motion within the time limited for her to do so. 11. It is common ground that the plaintiffs are, and were at all material times, impecunious. At an early stage of the proceedings they had the benefit of a grant of legal aid but, following representations made by the defendant to the Legal Aid Commission of NSW and sale of a property against which the plaintiffs might have asserted rights associated with the documentation they alleged to have been signed by the defendant, legal aid was withdrawn.