Holmes v DMS Pacific Exports [2007] NSWSC 563

Holmes v DMS Pacific Exports [2007] NSWSC 563

Plaintiffs are to pay the defendants' costs in accordance with the ordinary rule that costs follow the event. The solicitors (Ms Muc and Mr Healey) are to pay the defendants' costs on an indemnity basis, jointly and severally, because they acted in a clear conflict of interest and failed in their professional duties, which justifies an order for costs against solicitors personally. Any payment made by the solicitors will pro tanto discharge the plaintiffs' liability.

Parties
First Plaintiff: Paul Holmes; Second Plaintiff: Maria Luisa Holmes; First Defendant: DMS Pacific Exports Pty Limited; Second Defendant: Jeffrey Neil Thomas; Solicitor for Plaintiffs / Costs Respondent: Katerina Muc; Consultant Solicitor for Plaintiffs / Costs Respondent: Gregory Harrison Healey
Jurisdiction
Australia
Judgment Date
01 June 2007
Procedural Posture
Equity Proceedings (costs and Professional Conduct) / Costs and Professional Conduct Determination Post Judgment
Outcome
Plaintiffs to pay the defendants' costs. Katerina Muc and Gregory Harrison Healey jointly and severally to pay the defendants' costs of proceedings on an indemnity basis. Any payment by them reduces the plaintiffs' liability proportionately.
Legal Topics
Conflict of Interest, Costs Orders, Indemnity Costs, Solicitor's Duties
Legal Profession Civil Procedure Conflict of Interest Costs Orders Indemnity Costs Solicitor's Duties

Case Brief

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Parties

Paul Holmes

First Plaintiff

Maria Luisa Holmes

Second Plaintiff

DMS Pacific Exports Pty Limited

First Defendant

Jeffrey Neil Thomas

Second Defendant

Katerina Muc

Solicitor for Plaintiffs / Costs Respondent

Gregory Harrison Healey

Consultant Solicitor for Plaintiffs / Costs Respondent

Procedural Posture

Equity Proceedings (costs and Professional Conduct) / Costs and Professional Conduct Determination Post Judgment

Legal Issues

  1. 1 Whether solicitors should pay defendants' costs on an indemnity basis due to conflict of interest and improper conduct
  2. 2 Whether plaintiffs should also be liable for costs in light of solicitors' conduct

Ratio Decidendi

Plaintiffs are to pay the defendants' costs in accordance with the ordinary rule that costs follow the event. The solicitors (Ms Muc and Mr Healey) are to pay the defendants' costs on an indemnity basis, jointly and severally, because they acted in a clear conflict of interest and failed in their professional duties, which justifies an order for costs against solicitors personally. Any payment made by the solicitors will pro tanto discharge the plaintiffs' liability.

Court Disposition

Plaintiffs to pay the defendants' costs. Katerina Muc and Gregory Harrison Healey jointly and severally to pay the defendants' costs of proceedings on an indemnity basis. Any payment by them reduces the plaintiffs' liability proportionately.

Orders

  • The plaintiffs are to pay the defendants' costs of the proceedings.
  • Katerina Muc and Gregory Harrison Healey are to pay the defendants' costs of the proceedings on an indemnity basis, jointly and severally. Any payment on account of those costs made by either of them to the defendants will pro tanto discharge the plaintiffs' liability to pay the defendants' costs.