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Decisions of the Superior Courts of New South Wales, 1788-1899

Powells and Wells v. Cormack (1828) Sel Cas (Dowling) 845; [1828] NSWSupC 52

legal practitioner's costs, effect of settlement

Supreme Court of New South Wales

Hearing, 1828[1 ]

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 169]

[Powells & Wells v Cormack]

In this case the Defendant had paid the debt to one of the Plaintiffs after action commenced, in defiance of notice by the Plaintiff's Attorney to the Defendant and to pay the debt without the costs.  the Plaintiffs Attorney therefore proceeded with the action and obtained judgment by default for his costs.

Williams had on a former day obtained a rule for setting aside that judgment on the ground that the Defendant had settled the action with one of the plaintiffs; and that the defendant might have a new trial with liberty to plead a deed of composition with all the Defendants Creditors, which had been signed by one of the Plaintiffs after action brought   the action having been in fact brought in [p. 170] violation of the Covenant not to sue Defendant.

Allen was heard contra, and relied upon the express notice given by him as plaintiffs attorney not to pay the debt without the Costs.

Per Curiam.   The Court is bound to take case that the Plaintiffs Attorney is not damnified by the settlement of the action between the parties without the intervention of the attorney, where express notice had been given to the Defendant before the debt was settled.   The Court however sees no objection to this rule being made absolute in the terms prayed, the Defendant undertaking to pay the Plaintiffs Attorney his costs incurred in this action, he having been compelled to go on to judgment by reason of the Defendant refusing to pay his costs[2 ]

Rule allowed in these terms.


[1 ] From its position in the Select Cases, it is likely that this hearing was held on 5 July 1828.

[2 ] See also Levy v. Porter, 1828; Lord v. Dixon, 1828.

Published by the Division of Law, Macquarie University