New Price Retail Services Pty Limited and Anor v David Hanna [2014] NSWSC 1051

New Price Retail Services Pty Limited and Anor v David Hanna [2014] NSWSC 1051

The plaintiffs did not establish a tenable ground for joining Mr George Hanna. The existing reference orders expressly imposed joint and several liability for the referee's fees on the plaintiffs and David Hanna, and the plaintiffs conceded there was no contractual, tortious, statutory or other demonstrated legal basis for liability of Mr George Hanna. The reasoning in Birkai was not accepted as providing a sound basis for imposing referee fee liability on a solicitor merely because someone should pay, and an ethical obligation alone did not permit an order requiring a solicitor to pay referee fees absent legal liability. The motion to join Mr George Hanna and GMH Legal Pty Ltd was...

Jurisdiction
Australia
Judgment Date
04 August 2014
Procedural Posture
Equity Division Proceedings Involving Notices of Motion Concerning Adoption of a Referee's Report, Referee's Remuneration and Joinder of a Former Solicitor / Hearing of Plaintiffs' Joinder Motion; Referee Fee Motion and Balance of Plaintiffs' Earlier Motion Adjourned
Outcome
Plaintiffs' motion to join Mr George Hanna and GMH Legal Pty Ltd dismissed; costs of both respondents ordered to be paid by the plaintiffs on the ordinary basis; other motions adjourned with costs of the adjournment reserved.
Legal Topics
['joinder of Parties' 'referee Remuneration' 'costs of Reference' 'solicitor Liability for Referee Fees' 'ethical Obligations and Legal Liability']
['civil Procedure' 'equity' 'legal Profession'] ['joinder of Parties' 'referee Remuneration' 'costs of Reference' 'solicitor Liability for Referee Fees' 'ethical Obligations and Legal Liability']

Case Brief

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Procedural Posture

Equity Division Proceedings Involving Notices of Motion Concerning Adoption of a Referee's Report, Referee's Remuneration and Joinder of a Former Solicitor / Hearing of Plaintiffs' Joinder Motion; Referee Fee Motion and Balance of Plaintiffs' Earlier Motion Adjourned

Legal Issues

  1. 1 ['Whether Mr George Hanna and GMH Legal Pty Ltd should be joined to the proceedings or motions concerning referee remuneration' "Whether the plaintiffs had a tenable basis for seeking to make Mr George Hanna jointly and severally liable for the referee's fees" 'Whether Birkai Pty Ltd v Permanent Custodians Limited (1994) 35 NSWLR 178 provided a sound basis for joinder of a solicitor in relation to referee fees' 'Whether an ethical obligation of a solicitor can justify an order imposing liability for referee fees absent contractual, tortious, statutory or other legal liability']

Ratio Decidendi

The plaintiffs did not establish a tenable ground for joining Mr George Hanna. The existing reference orders expressly imposed joint and several liability for the referee's fees on the plaintiffs and David Hanna, and the plaintiffs conceded there was no contractual, tortious, statutory or other demonstrated legal basis for liability of Mr George Hanna. The reasoning in Birkai was not accepted as providing a sound basis for imposing referee fee liability on a solicitor merely because someone should pay, and an ethical obligation alone did not permit an order requiring a solicitor to pay referee fees absent legal liability. The motion to join Mr George Hanna and GMH Legal Pty Ltd was...

Court Disposition

Plaintiffs' motion to join Mr George Hanna and GMH Legal Pty Ltd dismissed; costs of both respondents ordered to be paid by the plaintiffs on the ordinary basis; other motions adjourned with costs of the adjournment reserved.

Orders

  • ['The motion of the plaintiff to join Mr George Hanna and GMH Legal Pty Ltd is dismissed.' 'The costs of both respondents are to be paid by the plaintiffs on the ordinary basis.' "The motion of the referee in relation to the fixing of his fees and the balance of the plaintiffs' motion of 6 September 2013 are...