Robert Ho v Paul Mervyn Fordyce t/as PMF Legal Trading (No 2) [2015] NSWSC 1748

Robert Ho v Paul Mervyn Fordyce t/as PMF Legal Trading (No 2) [2015] NSWSC 1748

Indemnity costs are granted in part due to Mr Fordyce's failure to disclose relevant facts known to him about creation of fee agreements and his conduct in attacking contrary evidence, justifying an award of indemnity costs for a limited proportion. Security for costs is denied because plaintiffs' proceedings are defensive, the law disfavors security in such cases when an individual plaintiff is joined, and no adequate evidence of quantum was provided. The fruits of litigation lien claim fails as no extant fund exists over which a lien could operate. Injunction over settlement proceeds to be discharged as no funds remain. Cross-claims and discovery against third parties are not permitted...

Parties
First Plaintiff: Robert Ho; Second Plaintiff: Rhodium NSW Pty Ltd; Third Plaintiff: The Trading House Pty Ltd; First Defendant: Paul Mervyn Fordyce t/as PMF Legal Trading; Second Defendant: PMF Legal Limited; Third Defendant: Daniel John Papps; Fourth Defendant: Daniel Alejandro Cravero
Jurisdiction
Australia
Judgment Date
20 November 2015
Procedural Posture
Equity Proceedings Regarding Contested Fee Agreements and Consequential Orders / Post Trial, Judgment on Interlocutory and Consequential Motions
Outcome
Applications determined as follows: indemnity costs (limited) granted for plaintiffs; security for costs, lien-based interlocutory relief, and expanded cross-claims/discovery dismissed; injunction discharged.
Legal Topics
Solicitor and Client Costs, Indemnity Costs, Security for Costs, Fruits of Litigation Lien, Injunctions, Costs Interest
Equity Civil Procedure Legal Profession Law Solicitor and Client Costs Indemnity Costs Security for Costs Fruits of Litigation Lien Injunctions +1 more

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Parties

Robert Ho

First Plaintiff

Rhodium NSW Pty Ltd

Second Plaintiff

The Trading House Pty Ltd

Third Plaintiff

Paul Mervyn Fordyce t/as PMF Legal Trading

First Defendant

PMF Legal Limited

Second Defendant

Daniel John Papps

Third Defendant

Daniel Alejandro Cravero

Fourth Defendant

Procedural Posture

Equity Proceedings Regarding Contested Fee Agreements and Consequential Orders / Post Trial, Judgment on Interlocutory and Consequential Motions

Legal Issues

  1. 1 Whether indemnity costs should be ordered due to unreasonable conduct of a solicitor party
  2. 2 Should costs be payable forthwith or await final resolution
  3. 3 Whether interest on costs should be ordered

Ratio Decidendi

Indemnity costs are granted in part due to Mr Fordyce's failure to disclose relevant facts known to him about creation of fee agreements and his conduct in attacking contrary evidence, justifying an award of indemnity costs for a limited proportion. Security for costs is denied because plaintiffs' proceedings are defensive, the law disfavors security in such cases when an individual plaintiff is joined, and no adequate evidence of quantum was provided. The fruits of litigation lien claim fails as no extant fund exists over which a lien could operate. Injunction over settlement proceeds to be discharged as no funds remain. Cross-claims and discovery against third parties are not permitted...

Court Disposition

Applications determined as follows: indemnity costs (limited) granted for plaintiffs; security for costs, lien-based interlocutory relief, and expanded cross-claims/discovery dismissed; injunction discharged.

Orders

  • Plaintiffs awarded indemnity costs limited to 25% of difference between party-party and indemnity basis, balance on party-party basis
  • Orders for costs not payable forthwith but interest on costs awarded per form approved in Drummond and Rosen