Lovick & Sons Developments & Anor v Doppstadt Australia & Anor [2009] NSWSC 773

Lovick & Sons Developments & Anor v Doppstadt Australia & Anor [2009] NSWSC 773

The plaintiffs were not clearly successful in a typical contested case because the substantive orders were conceded on the doorstep of the Court, and the plaintiffs' new solicitors failed to finalise and serve the proposed deed at an early stage and failed to correct Ferrier and Associates' misunderstanding that the motion had already been filed. Ferrier and Associates also could have acted more helpfully by drafting its own deed or enquiring about the missing deed. Because insufficient action by both sides contributed to the costs being incurred, costs should lie where they fall.

Jurisdiction
Australia
Judgment Date
22 June 2009
Procedural Posture
Notice of Motion Under S 728 of the Legal Profession Act 2004 Seeking Delivery of the Plaintiffs' Files From Former Solicitors / Costs Argument After Consent to Substantive Orders on the Motion
Outcome
No order as to costs on the motion; costs lie where they fall.
Legal Topics
['delivery of Client Files by Former Solicitors' 'failure of Communication Between Solicitors' 'costs of Motion' 'costs Where Parties Are Not Clearly Successful']
['costs' 'legal Profession'] ['delivery of Client Files by Former Solicitors' 'failure of Communication Between Solicitors' 'costs of Motion' 'costs Where Parties Are Not Clearly Successful']

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Procedural Posture

Notice of Motion Under S 728 of the Legal Profession Act 2004 Seeking Delivery of the Plaintiffs' Files From Former Solicitors / Costs Argument After Consent to Substantive Orders on the Motion

Legal Issues

  1. 1 ["Whether Ferrier and Associates should pay the plaintiffs' costs of the motion and the costs arising from the directions hearing on 15 June 2009." 'Whether either party should receive costs where miscommunication and insufficient action by both sides contributed to the motion being before the Court.']

Ratio Decidendi

The plaintiffs were not clearly successful in a typical contested case because the substantive orders were conceded on the doorstep of the Court, and the plaintiffs' new solicitors failed to finalise and serve the proposed deed at an early stage and failed to correct Ferrier and Associates' misunderstanding that the motion had already been filed. Ferrier and Associates also could have acted more helpfully by drafting its own deed or enquiring about the missing deed. Because insufficient action by both sides contributed to the costs being incurred, costs should lie where they fall.

Court Disposition

No order as to costs on the motion; costs lie where they fall.

Orders

  • ["The plaintiffs' files were to be returned on condition that the plaintiffs and their solicitors deliver to Ferrier and Associates an executed version of the deed annexed to the notice of motion filed on 18 June 2009." 'I decline to make an order for costs in favour of either party on this motion.']