Hudgson, J.N. & Anor v. Endrust Australia Pty Ltd & Anor [1986] FCA 190

Hudgson, J.N. & Anor v. Endrust Australia Pty Ltd & Anor [1986] FCA 190

The absence of evidence of an express agreement not to charge the second respondent means the legal fiction of a deemed retainer applies, entitling the second respondent to recover costs awarded to him, and the taxing officer must treat the second respondent as if he had engaged the solicitors.

Parties
Applicant: Jeffrey Norman Hudgson; Applicant: Rex Ian Hallyburton trading as Noosa Fun Wagon 4 x 4 Hire; First Respondent: Endrust (Australia) Pty. Ltd.; Second Respondent: Kerry William Fitzgerald trading as Endrust (Brisbane)
Jurisdiction
Australia
Judgment Date
06 May 1986
Procedural Posture
Application for Review of Taxing Officer's Decision on Costs / Post Judgment Costs Review
Outcome
Application succeeded; reconsideration of bill of costs remitted to taxing officer; no order as to costs of application.
Legal Topics
Solicitor's Retainer, Deemed Retainer, Taxation of Costs
Procedural Law Costs Solicitor's Retainer Deemed Retainer Taxation of Costs

Case Brief

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Parties

Jeffrey Norman Hudgson

Applicant

Rex Ian Hallyburton trading as Noosa Fun Wagon 4 x 4 Hire

Applicant

Endrust (Australia) Pty. Ltd.

First Respondent

Kerry William Fitzgerald trading as Endrust (Brisbane)

Second Respondent

Procedural Posture

Application for Review of Taxing Officer's Decision on Costs / Post Judgment Costs Review

Legal Issues

  1. 1 Whether a deemed retainer exists between the solicitor and the second respondent for purposes of taxation of costs
  2. 2 Whether the second respondent is liable to pay the solicitor who acted for both respondents

Ratio Decidendi

The absence of evidence of an express agreement not to charge the second respondent means the legal fiction of a deemed retainer applies, entitling the second respondent to recover costs awarded to him, and the taxing officer must treat the second respondent as if he had engaged the solicitors.

Court Disposition

Application succeeded; reconsideration of bill of costs remitted to taxing officer; no order as to costs of application.

Orders

  • The reconsideration of the relevant bill of costs be remitted to the taxing officer to be dealt with in the light of these reasons.
  • No order as to the costs of the application to the judge.