Frackelton v Atthow [1909] HCA 76

Frackelton v Atthow [1909] HCA 76

The order of the Full Court did not require the payment of costs by the defendants personally but limited recovery to property of the General Assembly and the Presbytery (if any). As such, the conditions that would trigger the solicitors’ undertaking to pay costs did not arise, and the solicitors were not liable under the undertaking.

Parties
Appellant; Plaintiff: Frackelton; Respondents; Defendants: Atthow and Others
Jurisdiction
Australia
Judgment Date
12 December 1909
Procedural Posture
Appeal / High Court of Australia on Appeal From the Supreme Court of Queensland (full Court)
Outcome
Appeal dismissed with costs.
Legal Topics
Costs, Undertakings by Solicitors, Stay of Proceedings, Interpretation of Court Orders
Civil Procedure Costs Undertakings by Solicitors Stay of Proceedings Interpretation of Court Orders

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Parties

Frackelton

Appellant; Plaintiff

Atthow and Others

Respondents; Defendants

Procedural Posture

Appeal / High Court of Australia on Appeal From the Supreme Court of Queensland (full Court)

Legal Issues

  1. 1 Whether the solicitors’ undertaking covered the costs of the appeal as well as costs of the trial
  2. 2 Whether conditions had arisen such that the solicitors' undertaking became enforceable

Ratio Decidendi

The order of the Full Court did not require the payment of costs by the defendants personally but limited recovery to property of the General Assembly and the Presbytery (if any). As such, the conditions that would trigger the solicitors’ undertaking to pay costs did not arise, and the solicitors were not liable under the undertaking.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.