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Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14344
Experience:  I did my law degree at the University of Queensland
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I am one of three losing defendants in a NSW Supreme Court

Customer Question

I am one of three losing defendants in a NSW Supreme Court Equity matter.
Am I jointly and severally liable for the other two losing defendants?
I have funds in a controlled monies account that are more than the amount awarded by the costs assessment to the Plaintiff.
Regards Anthony.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Brisbane-Lawyer replied 1 year ago.
Can you please clarify what your question is?
Customer: replied 1 year ago.

Do I have to pay the palintiff the full amount of whats owing or do we split it 3 ways and I only pay a third?

Expert:  Brisbane-Lawyer replied 1 year ago.
That depends on what the judgement says. Can you please attach a copy?
Customer: replied 1 year ago.


The ex tempore judgment or the short minutes of order

Customer: replied 1 year ago.


How do I send it to you?

Expert:  Brisbane-Lawyer replied 1 year ago.
Please email it to:
XXX@XXXXXX.XXX

And ask them to forward it to Alex in the Australia law group. This can take up to 24 hours.
Customer: replied 1 year ago.

Hello Alex,


I have just forwarded the Ex Tempore Judgment to the email address you provided, attention forward to Alex.


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
I will let you know when it has arrived.
Customer: replied 1 year ago.


How did it go Alex, did that Pdf turn up?


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Nothing has come through yet. Can you please email them again and ask for confirmation they have sent it through?
Customer: replied 1 year ago.

Hello Alex,
I think the file size was too big for the network somwhere, it was 5Mb.


I have reduced the file size to >1 Mb, should come through now.


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Are you emailing it?
Customer: replied 1 year ago.


Yes I have just sent it to you.

Expert:  Brisbane-Lawyer replied 1 year ago.
Okay, I will let you know when it has arrived.
Expert:  Brisbane-Lawyer replied 1 year ago.
Its come through now.

Regarding Order 28, which one in particular would you like clarification about?
Customer: replied 1 year ago.


Hello Alex,


Please clarify order 28 (5) & (8).


Kind regards, Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Okay, what the order is saying is that once orders 28 (1) through (4) have been complied with, whatever funds remain in the controlled money account need to stay there.

With regard to 28(8), that order is saying that all three need to pay 22.2% of the Plaintiffs costs. So altogether, with each of them paying 22.2%, the total will be 66.6% which is two thirds.

Should you have any other questions, please let me know.

If you're satisfied with the results of your question, then I'll ask you to please provide positive feedback so that I will get credit for the time spent on your question. Your question can continue even after you leave positive feedback, so if you have any follow up questions please don't be afraid to ask.
Customer: replied 1 year ago.


Alex, Thank you. What I want to know is am liable to pay to for the other 2 defendants just because I have sufficient money in the controlled money account or can I just pay my 22.2% and be done with it all?


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
What I want to know is am liable to pay to for the other 2 defendants just because I have sufficient money in the controlled money account or can I just pay my 22.2% and be done with it all?

You are not required to pay for them. All you need to do is pay your 22.2% and you will have complied with the order.

If you're satisfied with the results of your question, then I'll ask you to please provide positive feedback so that I will get credit for the time spent on your question. Your question can continue even after you leave positive feedback, so if you have any follow up questions please don't be afraid to ask.
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14344
Experience: I did my law degree at the University of Queensland
Brisbane-Lawyer and 2 other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

Alex, is there any way that these orders could be read as meaning that I am jointly and severally liable, therefore being made pay for everyone?
Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Not unless the orders are amended, no. As they stand now, you seem to be just one of a few liable parties.
Customer: replied 1 year ago.

Alex, Good morning!


Could we have your opinion in the language that a lawyer would understand?


We will be most likely having to discuss this today with the Law Firm that is holding our money in their controlled monies account.


Kind regards, Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
That is a little vague for a question. We don't do legal drafting on this site if that is what you are looking for.

But if you just want a a couple pointers, I would say the judge would not have ordered and referred to three specific defendants in 28(8) if it had been his intention that only one was responsible to pay the Plaintiff's costs.

To be honest the orders seem very straight forward to me. I would be surprised if the lawyer you speak to acting for one of the other parties has a different interpretation.

The trickier order is 28(5) because it includes the words "An order that the balance of the funds ..." instead of "An order that the funds ...".

So perhaps the judge may have thought that there would be insufficient funds in the controlled money account to fully meet the other orders. Alternatively, its possible that the judge simply wanted to temporarily freeze the whole CMA. The language used is a little ambiguous, but the judge's intention is clear that no money in that account is going anywhere for the time being.
Customer: replied 1 year ago.


Hello Alex,


In doing further research we have uncovered the subject of Proportional Liability, and the Civil Liability Act of NSW.


This Civil Liability Act must be the reason you say that my liability is one third of the total liability. Am I rcorrect in my thinking or does your view stem from some other legislation that I am unfamiliar with.


As an update, the Lawyer with the CMA seems to think I am wholly liable because of Joint and Several Liability and wants me to approve payment of the full amount after any relevant setoff.


Your thoughts please?


Kind regards, Anthony

Expert:  Brisbane-Lawyer replied 1 year ago.
There were four defendants:

First Defendant:- Lithgow Forge Pty Ltd
Second Defendant: Anthony John Wieland
Third Defendant:- Rachael Allen
Fourth Defendant:- Nicholine Wieland

So why does he think you are wholly liable?

Also, I don't know how much help I can continue to give you. This is a question and answer service. We don't read through lengthy judgements on this site to get up to speed on complex matters. That isn't the purpose of this website.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2011/1185.html?stem=0&synonyms=0&query=title(%222011%20nswsc%201185%22)
Customer: replied 1 year ago.

OK thanks, XXXXX XXXXX do appreciate your help.


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Thank you for acknowledging that.

So why does this lawyer think you are wholly liable? And specifically which party in the judgement linked above does this lawyer represent?
Customer: replied 1 year ago.

Alex,


His words are


2. A review of the Judgment of His Honour Justice Slattery appears to indicate that the liability for Costs payable to the Plaintiff is a joint and several liability of the Defendants, excepting Rachael Allen. Mr Peters appears to be entitled to enforce his rights to the payment of the Plaintiff’s Costs against any or all of the relevant Defendants;


This lawyer represented the 1st and 2nd defendants, (myself and Lithgow Forge). He has since ceased to act for us as we can no longer afford anymore ongoing legal expenses.


Kind regards, Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
Okay. And what section of the Civil Liability Act do you think is at odds with his interpretation?
Customer: replied 1 year ago.

Alex,
I can't answer that question. All I know is he wants me to pay 100% of the Assessed costs determination instead of 1/3rd.


Kind regards, Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
You are going to need to ask him whether this is just his opinion or if he has some other basis for concluding this.

Did the judgement which I haven't read through say that the defendants are jointly and severally liable?
Customer: replied 1 year ago.

Alex,


I beleive it is just his opinion.


 


No where in the judgment does it use the words jointly and severally liable.


Kind regards, Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
In that case it is just his opinion. I have looked through the NSW Civil Procedure Rules and can find nothing to substantiate that viewpoint. However, you may want to contact the judge's associate and ask if the judge can clarify that.

Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14344
Experience: I did my law degree at the University of Queensland
Brisbane-Lawyer and 2 other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.


Alex, Thank you very much.


I will now stop asking for anymore detail.


You have been very kind and helpfull.


Kind regards Anthony.

Expert:  Brisbane-Lawyer replied 1 year ago.
You are welcome. I was glad to be able to assist.

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