City Bank of Sydney v McLaughlin [1909] HCA 15; (1909) 10 CLR 362 (4 April 1909)

HIGH COURT OF AUSTRALIA

City Bank of Sydney Appellants; and McLaughlin Respondent.

H C of A

4 April 1909

Griffith C.J.

The respondent, in person.

Leibius, solicitor, for the City Bank of Sydney.

Griffith C.J.

I think that the charges for counsel's opinion as to the advisability of an appeal cannot be allowed. It appears that under the Rules of the Supreme Court of New South Wales in its equity jurisdiction such costs may be allowed as between party and party, but the costs now under consideration are costs incurred in respect of proceedings in the High Court. In the precedents of bills of costs given in Safford and Wheeler such costs are included in costs as between solicitor and client, and not in appellant's costs. If it had appeared to be the recognized practice of the Privy Council to allow such costs as between party and party I might have entertained some doubt on the point, but as the practice appears to be the other way, I adhere to my first impression that the appellant's costs begin with the instructions to appeal, and that the costs of obtaining counsel's opinion as to the advisability of an appeal, although allowable as between solicitor and client, are not allowable as between party and party.

With regard to the costs of obtaining a repayment of the deposit of £50 for security, it is plain that the appellants were entitled to a return of their deposit. This is so plain that this Court has frequently refused to make a formal order for the return of the deposit of a successful appellant. In the present case, however, the appellants were in fact unable to obtain a return of the deposit, although this Court had declared their right to it, without an order of the Supreme Court.

A consent order was taken out, in respect of which the appellants claim the ordinary costs of such an order in the Supreme Court. I do not think they can be allowed on that basis. They are, however, entitled to the expenses of obtaining repayment of the deposit, which should not exceed the costs of attending to receive it, together with the costs of an ex parte application to the Judge, if necessary.

I therefore direct a review of taxation by omitting the charges in respect of counsel's opinion as to appeal, and all charges in respect of obtaining a refund of the deposit beyond those which I have described. The bill of costs may be amended for this purpose. The appellants must pay the costs of the summons.

Application granted.

Solicitors, for appellants, Leibius & Black.