Eurobodalla Shire Council v Wells & 2 Ors [2006] NSWCA 5

Eurobodalla Shire Council v Wells & 2 Ors [2006] NSWCA 5

The evidence at trial did not establish essential elements of Mrs Aldridge's cause of action, including the cause of the bench collapse or that any act or omission of the Council caused it. The deficiencies were obvious before the application for leave to appeal and appeal were launched, the case was hopeless, and the s 198N presumption that legal services were provided without reasonable prospects of success was not rebutted. In those circumstances, and given there was no difficult question of law or redeeming feature, it was just to order the first and second opponents to indemnify the Council for the relevant costs under s 198M.

Jurisdiction
Australia
Judgment Date
21 February 2006
Procedural Posture
Application for Costs Order Against Solicitor and Barrister Under S 198 M of the Legal Profession Act 1987 (nsw) / Court of Appeal Determination of Notice of Motion by Written Submissions Following Dismissal of Application for Leave to Appeal
Outcome
Notice of Motion granted; costs order varied and indemnity costs orders made against the first and second opponents.
Legal Topics
['costs Order Against Legal Practitioners' 'legal Services Without Reasonable Prospects of Success' 'application for Leave to Appeal' "occupier's Liability" 'calderbank Offer' 'non Economic Loss Threshold']
['legal Profession' 'civil Procedure' 'costs' 'personal Injury Negligence'] ['costs Order Against Legal Practitioners' 'legal Services Without Reasonable Prospects of Success' 'application for Leave to Appeal' "occupier's Liability" 'calderbank Offer' 'non Economic Loss Threshold']

Case Brief

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Procedural Posture

Application for Costs Order Against Solicitor and Barrister Under S 198 M of the Legal Profession Act 1987 (nsw) / Court of Appeal Determination of Notice of Motion by Written Submissions Following Dismissal of Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether s 198M of the Legal Profession Act 1987 (NSW) empowered the Court of Appeal to make an indemnity costs order against the solicitor and barrister who represented Mrs Aldridge in her application for leave to appeal and appeal.' 'Whether the solicitor and barrister provided legal services to Mrs Aldridge without reasonable prospects of success.' 'Whether the presumption in s 198N of the Legal Profession Act 1987 (NSW) applied and was rebutted.' 'Whether the Court should exercise its discretion to order the first and second opponents to indemnify the Council for the relevant costs.']

Ratio Decidendi

The evidence at trial did not establish essential elements of Mrs Aldridge's cause of action, including the cause of the bench collapse or that any act or omission of the Council caused it. The deficiencies were obvious before the application for leave to appeal and appeal were launched, the case was hopeless, and the s 198N presumption that legal services were provided without reasonable prospects of success was not rebutted. In those circumstances, and given there was no difficult question of law or redeeming feature, it was just to order the first and second opponents to indemnify the Council for the relevant costs under s 198M.

Court Disposition

Notice of Motion granted; costs order varied and indemnity costs orders made against the first and second opponents.

Orders

  • ["The costs order made by the Court on 8 November 2005 was varied by replacing the order that the Third Opponent pay the Council's costs of the Third Opponent's application for leave to appeal with an order directing the First and Second Opponents pursuant to s 198M of the Legal Profession Act 1987 (NSW) to...