Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148

Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148

The appeal failed because the costs order in Ms Burrows' favour was discharged by subsequent consent orders, no breach causing compensable loss was established, there was no reason to disregard the corporate distinction between M&K Sydney and M&K Lawyers Group, and costs for legal services rendered by employed solicitors of the parent company on behalf of its subsidiary in litigation were recoverable. The refusal of a second adjournment did not result in procedural unfairness. The Chorley exception does not preclude the recovery of these costs as the companies remain distinct and costs were properly incurred.

Parties
Applicant: Zali Burrows; First Respondent: Macpherson & Kelley Lawyers (Sydney) Pty Ltd; Second Respondent: Melinda Di Condio
Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Civil Appeal / Application for Leave to Appeal—court of Appeal
Outcome
Appeal dismissed (where leave granted); leave otherwise refused
Legal Topics
Solicitor's Liability for Failure to Enforce Costs Order, Chorley Exception—solicitor Litigants and Recovery of Costs, Recoverability of Costs for Work by Employed Solicitors of Law Practices, Corporate Veil in Law Practices, Adjournment of Proceedings, Independence in Legal Representation
Civil Procedure Professional Negligence Legal Profession Costs Solicitor's Liability for Failure to Enforce Costs Order Chorley Exception—solicitor Litigants and Recovery of Costs Recoverability of Costs for Work by Employed Solicitors of Law Practices Corporate Veil in Law Practices +2 more

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Parties

Zali Burrows

Applicant

Macpherson & Kelley Lawyers (Sydney) Pty Ltd

First Respondent

Melinda Di Condio

Second Respondent

Procedural Posture

Civil Appeal / Application for Leave to Appeal—court of Appeal

Legal Issues

  1. 1 Whether the primary judge erred in dismissing Ms Burrows' claims in contract and tort for failure to enforce a favourable costs order
  2. 2 Whether refusal of a second adjournment was a denial of procedural fairness
  3. 3 Whether costs incurred by legal services provided by a holding company's law practice are recoverable by the subsidiary in litigation following Bell Lawyers Pty Ltd v Pentelow

Ratio Decidendi

The appeal failed because the costs order in Ms Burrows' favour was discharged by subsequent consent orders, no breach causing compensable loss was established, there was no reason to disregard the corporate distinction between M&K Sydney and M&K Lawyers Group, and costs for legal services rendered by employed solicitors of the parent company on behalf of its subsidiary in litigation were recoverable. The refusal of a second adjournment did not result in procedural unfairness. The Chorley exception does not preclude the recovery of these costs as the companies remain distinct and costs were properly incurred.

Court Disposition

Appeal dismissed (where leave granted); leave otherwise refused

Orders

  • In proceeding 2020/17047: Appeal dismissed as incompetent; Ms Burrows to pay the respondents' costs.
  • In proceeding 2020/219817: Grant leave confined to grounds 13.2 and 14 and otherwise dismiss the summons; dispense with additional notice of appeal; appeal dismissed with costs.