McIvor v Battersby [2013] NSWSC 1138

McIvor v Battersby [2013] NSWSC 1138

Bale Boshev Lawyers should have accepted Fowler Predny's offer to retain the judgment moneys pending resolution of Bale Boshev's costs, and was responsible for the plaintiff incurring the costs of the payment-into-court proceedings; it therefore had to indemnify the defendant for the costs payable by her to the plaintiff. However, because the defendant had maintained an incorrect position that Bale Boshev's lien did not extend to the verdict moneys, it was not appropriate to order Bale Boshev to pay the defendant's own costs of the proceedings.

Jurisdiction
Australia
Judgment Date
09 August 2013
Procedural Posture
Costs / Application by the Defendant for Orders That Former Solicitors Indemnify Her for Costs Payable to the Plaintiff and Pay Her Costs of the Proceedings
Outcome
Orders made joining Peter Bale, George Boshev and Scott Bryant as second defendants; second defendants ordered to indemnify the first defendant for costs payable to the plaintiff; no other costs order between the first and second defendants.
Legal Topics
['recovery of Costs' "solicitors' Lien" 'verdict Moneys' 'indemnity for Costs' 'joinder']
['procedure' 'costs'] ['recovery of Costs' "solicitors' Lien" 'verdict Moneys' 'indemnity for Costs' 'joinder']

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Procedural Posture

Costs / Application by the Defendant for Orders That Former Solicitors Indemnify Her for Costs Payable to the Plaintiff and Pay Her Costs of the Proceedings

Legal Issues

  1. 1 ['Whether Bale Boshev Lawyers should indemnify the defendant for the costs payable by her to the plaintiff to be deducted from the legacy payable to her current solicitors.' "Whether Bale Boshev Lawyers should pay the defendant's costs of the proceedings."]

Ratio Decidendi

Bale Boshev Lawyers should have accepted Fowler Predny's offer to retain the judgment moneys pending resolution of Bale Boshev's costs, and was responsible for the plaintiff incurring the costs of the payment-into-court proceedings; it therefore had to indemnify the defendant for the costs payable by her to the plaintiff. However, because the defendant had maintained an incorrect position that Bale Boshev's lien did not extend to the verdict moneys, it was not appropriate to order Bale Boshev to pay the defendant's own costs of the proceedings.

Court Disposition

Orders made joining Peter Bale, George Boshev and Scott Bryant as second defendants; second defendants ordered to indemnify the first defendant for costs payable to the plaintiff; no other costs order between the first and second defendants.

Orders

  • ['Order that Peter Bale, George Boshev and Scott Bryant be joined as second defendants to the proceedings.' "Order that the second defendants indemnify the first defendant in respect of the costs payable by the first defendant to the plaintiff that are to be deducted from the moneys to be paid to the first...