Taryn Maree Hammond v Annette Hammond [2012] NSWSC 1520

Taryn Maree Hammond v Annette Hammond [2012] NSWSC 1520

Although the plaintiffs' solicitors failed to diarise the 2 July 2012 hearing, the subsequent dismissal was connected to non-receipt of the UCPR 13.6 notice. The solicitors' failure to file a notice of change of address under UCPR 4.6 was not serious neglect because UCPR 4.6 was permissive and they had taken reasonable steps by putting in place a mail redirection; the problem was caused by the Court's failure to include the firm name in the letter. The late filing of the notice of motion under UCPR 36.16(3A) was not causative of loss. Therefore the solicitors should not be ordered to pay the costs.

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Costs; Wasted Costs; Costs Against Solicitor / Submissions After the Court Set Aside the Registrar's Dismissal of the Plaintiffs' Proceedings and Reserved Costs, on Whether the Plaintiffs' Solicitors Should Pay the Defendant's Costs From 2 July 2012
Outcome
Plaintiff's solicitors not liable for Defendant's costs.
Legal Topics
['wasted Costs' 'costs Against Legal Practitioner' 'serious Neglect' 'failure to Attend Directions Hearing' 'notice of Change of Address for Service' 'causation of Costs']
['civil Procedure' 'costs'] ['wasted Costs' 'costs Against Legal Practitioner' 'serious Neglect' 'failure to Attend Directions Hearing' 'notice of Change of Address for Service' 'causation of Costs']

Case Brief

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Procedural Posture

Costs; Wasted Costs; Costs Against Solicitor / Submissions After the Court Set Aside the Registrar's Dismissal of the Plaintiffs' Proceedings and Reserved Costs, on Whether the Plaintiffs' Solicitors Should Pay the Defendant's Costs From 2 July 2012

Legal Issues

  1. 1 ["Whether the plaintiffs' solicitors should be ordered to pay the defendant's costs from 2 July 2012." "Whether the plaintiffs' solicitors' failure to diarise the 2 July 2012 directions hearing and failure to file a notice of change of address amounted to serious neglect or serious incompetence under s 99 of the Civil Procedure Act 2005." 'Whether the failure to file a notice of motion within 14 days under UCPR 36.16(3A) caused loss.']

Ratio Decidendi

Although the plaintiffs' solicitors failed to diarise the 2 July 2012 hearing, the subsequent dismissal was connected to non-receipt of the UCPR 13.6 notice. The solicitors' failure to file a notice of change of address under UCPR 4.6 was not serious neglect because UCPR 4.6 was permissive and they had taken reasonable steps by putting in place a mail redirection; the problem was caused by the Court's failure to include the firm name in the letter. The late filing of the notice of motion under UCPR 36.16(3A) was not causative of loss. Therefore the solicitors should not be ordered to pay the costs.

Court Disposition

Plaintiff's solicitors not liable for Defendant's costs.

Orders

  • ['The Court will not order the solicitors to pay the costs.' 'The Court will hear any further submissions on costs.']