Gibson v Drumm & Others [2016] NSWSC 570

Gibson v Drumm & Others [2016] NSWSC 570

There was clearly a retainer of the solicitors by Mr Drumm, and whether the costs agreement was valid or void was irrelevant because costs under a void costs agreement were recoverable insofar as fair and reasonable. The indemnity principle did not bar recovery because a liability existed between solicitor and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 May 2016
Procedural Posture
Costs / Judgment on the Question of Costs After Proceedings Were Transferred From the Federal Court to the Supreme Court of New South Wales and the Plaintiff Did Not Pursue the Case Against Mr Drumm.
Outcome
Gross indemnity costs order made in favour of Mr Drumm against the plaintiff.
Legal Topics
['void Costs Agreement' 'indemnity Principle' 'gross Costs Order' 'indemnity Costs' 'cross Vesting Transfer']
['costs' 'civil Procedure' 'legal Profession'] ['void Costs Agreement' 'indemnity Principle' 'gross Costs Order' 'indemnity Costs' 'cross Vesting Transfer']

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Procedural Posture

Costs / Judgment on the Question of Costs After Proceedings Were Transferred From the Federal Court to the Supreme Court of New South Wales and the Plaintiff Did Not Pursue the Case Against Mr Drumm.

Legal Issues

  1. 1 ['Whether Mr Drumm was entitled to a costs order against Dr Gibson.' 'Whether absence of payment, absence of a signed bill, or a void costs agreement prevented recovery of costs.' 'Whether the indemnity principle barred a costs order.' "Whether particular items in the solicitors' bill were fair and reasonable." 'Whether the Court should make a gross costs order on an indemnity basis.']

Ratio Decidendi

There was clearly a retainer of the solicitors by Mr Drumm, and whether the costs agreement was valid or void was irrelevant because costs under a void costs agreement were recoverable insofar as fair and reasonable. The indemnity principle did not bar recovery because a liability existed between solicitor and client despite non-payment and absence of a signed bill. After disallowing unfair or unreasonable items and applying a discount, the Court was able to fix gross costs, and indemnity costs were warranted by the history of the matter, including numerous motions and substantial affidavit material that was not pressed to a final hearing.

Court Disposition

Gross indemnity costs order made in favour of Mr Drumm against the plaintiff.

Orders

  • ["The plaintiff pay Mr Drumm's costs, assessed including counsel's fees at $10,170." 'The exhibits should remain subject to any order that a registrar might make.']