Mathew CHAINA & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 5) [2011] NSWSC 667

Mathew CHAINA & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 5) [2011] NSWSC 667

SCL was entitled to a gross sum costs order because it was successful and the applicants did not oppose the order. MTP's presence and participation were prudent and essential given the 2008 tripartite agreement and MTP's interest in the final orders; because the dispute was brought about by the applicants' approach to SCL's claim for costs and security and the applicants were unsuccessful, they should pay MTP's costs. MTP's costs were not ordered payable forthwith because they were more properly part of the overall costs of the litigation and MTP's position could be protected by interest.

Jurisdiction
Australia
Judgment Date
04 July 2011
Procedural Posture
Notice of Motion Seeking Production of Files From Former Solicitors Pursuant to S728(1)(b) of the Legal Profession Act 2004 (nsw) / Costs Determination Following Orders for Release of Files on Security
Outcome
Applicants ordered to pay SCL's and MTP's costs of the motion; MTP's request that its costs be payable forthwith refused.
Legal Topics
['costs of Motion' 'gross Sum Costs Order' "solicitors' Lien" "security for Former Solicitors' Costs" 'production of Client Files' 'forthwith Costs']
['civil Procedure' 'costs' 'legal Profession'] ['costs of Motion' 'gross Sum Costs Order' "solicitors' Lien" "security for Former Solicitors' Costs" 'production of Client Files' 'forthwith Costs']

Case Brief

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Procedural Posture

Notice of Motion Seeking Production of Files From Former Solicitors Pursuant to S728(1)(b) of the Legal Profession Act 2004 (nsw) / Costs Determination Following Orders for Release of Files on Security

Legal Issues

  1. 1 ['Whether SCL should recover its costs of the motion by a gross sum costs order assessed at $10,000 payable within 28 days.' "Whether MTP's participation in the motion was reasonable or essential so that the applicants should pay MTP's costs." "Whether MTP's costs of the motion should be payable forthwith."]

Ratio Decidendi

SCL was entitled to a gross sum costs order because it was successful and the applicants did not oppose the order. MTP's presence and participation were prudent and essential given the 2008 tripartite agreement and MTP's interest in the final orders; because the dispute was brought about by the applicants' approach to SCL's claim for costs and security and the applicants were unsuccessful, they should pay MTP's costs. MTP's costs were not ordered payable forthwith because they were more properly part of the overall costs of the litigation and MTP's position could be protected by interest.

Court Disposition

Applicants ordered to pay SCL's and MTP's costs of the motion; MTP's request that its costs be payable forthwith refused.

Orders

  • ["That the applicants to the motion of 5 April 2011 pay SCL's costs of the motion assessed at $10,000 within 28 days of these orders." "That the applicants to the motion of 5 April 2011 pay MTP's costs of the motion, as agreed or assessed." 'If the costs cannot be agreed within 28 days of the date of this order, MTP...