State Reporting Bureau

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1 [233 QSC >86 Queensl Government Department of Justice Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director,. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPIES ISSUED Date: 3 June, 23 BYRNE J No S2896 of 2 SUNDALE ENTERPRISES PTY LTD ACN Plaintiff BRUCE JAMES CHRISTIE First Defendant MARGARET TERESA CHRISTIE Second Defendant BRISBANE..DATE 26/5/23 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 999, complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 4th Floor, The Law Courts, George Street, Brisbane, Q. 4 Telephone: (7) Fax: (7)

2 26523 T/JAP22 M/T /23 (Byrne J) HIS HONOUR: Objection has been taken to the admissibility of the last paragraph on page 2 of the notes of the conference taken by Mr Shipway,, Exhibit A to his affidavit filed on 2 May. This is the only part of the note which is sought to be admitted against the respondents. The communication which the note attributes to Mr Shannon was made in the course of a conference called to consider, on a without prejudice basis, a claim by Mr Shannon's client which had it succeeded would have had the practical effect of seeing Mr Shannon's firm paid legal costs the liability of their clients to them reduced in the amount of the payment out of the fund. The statement in question was therefore pertinent to the subject matter of the negotiations towards a compromise of the solicitor's clients claim to have a fund appropriated to payment of legal fees in connection with the winding up of a partnership of which the solicitor's client had formally been a member. And the statement was made apparently as the client's agent, not on behalf of the solicitor who stood to gain financially to the extent to which the client's liability to his firm was reduced by payment out of the fund. The communication is therefore entitled to without prejudice privilege even in these present proceedings, which are against the solicitors. The objection is therefore sustained. 2 RULING 6

3 Jkx>3] Qsc 86 Queensl Government Department of Justice Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director,. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPIES ISSUED Date: 3 June, 23 BYRNE J No S2896 of 2 SUNDALE ENTERPRISES PTY LTD ACN Plaintiff BRUCE JAMES CHRISTIE First Defendant MARGARET TERESA CHRISTIE Second Defendant BRISBANE..DATE 26/5/23 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 999, complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 4th Floor, The Law Courts, George Street, Brisbane, Q. 4 Telephone: (7) Fax: (7)

4 26523 T/JAP22 M/T /23 (Byrne J) HIS HONOUR: The respondents are solicitors. Formerly, they acted as such for the defendants in connection with the dissolution of their partnership with the plaintiff. In March 2, the plaintiff commenced proceedings seeking dissolution of the partnership ancillary orders. The respondents acted as the defendant's solicitors in that litigation. In April 2, the partnership was declared to have been dissolved by an earlier notice, receivers managers were appointed to realise its assets. By June 2, the defendants were indebted to the respondents in a substantial sum for costs in connection with the dissolution the litigation concerning it. More than $46, was available as the proceeds of the realisation of the assets of the former partnership. The defendants contended that the money should be made available 4 to pay the respondents fees incurred in acting for the defendants in the dissolution of litigation instituted proceedings to have that question determined, in the event unsuccessfully: See [23] QdR. The plaintiff now seeks an order that the respondents pay the costs of those proceedings. 2 JUDGMENT 6

5 26523 T/JAP22 M/T /23 (Byrne J) There is evidence to show that at the time the claim to the fund was prosecuted the defendants were in financial difficulties: so much so that it seems more probable than not that, as the respondents knew, the defendants would be unable to satisfy a liability in costs if their case were lost they were ordered to pay the costs of the proceedings, as happened. For the applicant it is also pointed out that the respondent stood to gain financially from the successful outcome. Such an event would have seen them paid at least the bulk of their 2 costs outlays, no doubt from the fund: See order of Holmes J made on 24th October, 2. These considerations, that the defendants cannot pay the costs ordered against them, are said to justify an order that the respondents pay the costs of the litigation their clients lost in accordance with the principle stated in Knight v F P Special Assets (992) 74 CLR 78, especially at pp This is not an appropriate case in which to make such an order. 4 The solicitors acted as such: that is, under the instructions of their client to prosecute a fairly arguable claim. True it is that the solicitors stood to gain from their clients' success. Had the case been won the fund would have seen them paid the fees due to them in respect of their work as the defendants' solicitors in the earlier dissolution 3 JUDGMENT 6

6 26523 T/JAP22 M/T /23 (Byrne J) proceedings. But this is not, in all the circumstances of the i present case, a satisfactory basis for making the solicitors liable for the costs of the failed proceedings. Those proceedings, if successful, would have enabled recourse to the fund to discharge the entire liability for costs of the defendants to the respondents. The defendants therefore stood to benefit from a determination that the costs which they had incurred in their retainer of the respondents be paid from the fund. But the decision to prosecute the claim was that of the defendants, in their own interest: to access a fund that could be used to discharge their extant liability to the respondents. That the success of the claim would also have benefited the solicitors who acted as such in the litigation by seeing them paid rather than left unpaid because of the defendants' impecuniosity does not constitute them "the real party" sting to gain from the success of the litigation. Nor, in my opinion, does that or any other presently relevant 4 circumstance a sound basis for the exercise of the discretion to order them, as a non-party, to pay the costs of the failed litigation. The application is therefore dismissed. 4 JUDGMENT 6

7 26523 T/JAP22 M/T /23 (Byrne J) HIS HONOUR: The orders will be application dismissed. Order that the plaintiff pay the respondents 'costs of incidental to the application to be assessed JUDGMENT 6

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