Harith & Kanuth v McCrohon & 2 Ors [2009] NSWSC 111

Harith & Kanuth v McCrohon & 2 Ors [2009] NSWSC 111

The defendants were liable because they failed to bring the fee problem to a head by no later than 8 July 2003, altered the terms of counsel's engagement only two days before the Mackay hearing by declining responsibility for counsel's fees, and thereby caused counsel's withdrawal and the plaintiffs' need to seek an adjournment which resulted in substantial adverse costs. They also breached their duty by failing fully to explain the costs consequences of using Sydney solicitors rather than Queensland solicitors for Queensland litigation. The recoverable damages were the liability for Beale's costs, the decrease in party/party costs, and a reasonable amount for objecting to Beale's costs.

Jurisdiction
Australia
Judgment Date
05 March 2009
Procedural Posture
Professional Negligence Claim Against Solicitors in Contract, Tort and Breach of Fiduciary Duty / Principal Judgment on Liability and Damages, With Interest and Costs Stood Over
Outcome
Plaintiffs succeeded in part; damages of AUD 281,694 were awarded, with interest and costs stood over.
Legal Topics
["solicitors' Retainer" 'withdrawal From Acting' 'reasonable Notice' "counsel's Fees" 'breach of Fiduciary Duty' 'costs Consequences of Interstate Solicitors Acting' 'assessment of Damages']
['professional Negligence' 'contract' 'tort' 'equity' 'legal Costs'] ["solicitors' Retainer" 'withdrawal From Acting' 'reasonable Notice' "counsel's Fees" 'breach of Fiduciary Duty' 'costs Consequences of Interstate Solicitors Acting' 'assessment of Damages']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Professional Negligence Claim Against Solicitors in Contract, Tort and Breach of Fiduciary Duty / Principal Judgment on Liability and Damages, With Interest and Costs Stood Over

Legal Issues

  1. 1 ["Whether the defendant solicitors breached their retainer, duty of care or fiduciary duties by altering the terms of counsel's engagement two days before the Queensland hearing and precipitating counsel's withdrawal and an adjournment." 'Whether the defendant solicitors gave reasonable notice before ceasing or threatening to cease to act because the plaintiffs had not provided funds for fees and disbursements.' 'Whether the defendant solicitors adequately advised the plaintiffs of the costs consequences of using Sydney solicitors who were not admitted in Queensland for Queensland Supreme Court litigation.' 'What damages were recoverable for the adverse costs order and related costs consequences.']

Ratio Decidendi

The defendants were liable because they failed to bring the fee problem to a head by no later than 8 July 2003, altered the terms of counsel's engagement only two days before the Mackay hearing by declining responsibility for counsel's fees, and thereby caused counsel's withdrawal and the plaintiffs' need to seek an adjournment which resulted in substantial adverse costs. They also breached their duty by failing fully to explain the costs consequences of using Sydney solicitors rather than Queensland solicitors for Queensland litigation. The recoverable damages were the liability for Beale's costs, the decrease in party/party costs, and a reasonable amount for objecting to Beale's costs.

Court Disposition

Plaintiffs succeeded in part; damages of AUD 281,694 were awarded, with interest and costs stood over.

Orders

  • ["Award the plaintiffs AUD 250,000 for liability for Beale's costs." "Award the plaintiffs AUD 22,694 for decrease in the plaintiffs' party/party costs." "Award the plaintiffs AUD 9,000 for costs of objecting to Beale's costs arising out of the adverse costs order, including court attendances." 'Stand over the...