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

Rowe v O'Donnel and others (1830) NSW Sel Cas (Dowling) 854; [1830] NSWSupC 40

costs, legal, costs, set off

Supreme Court of New South Wales

Hearing, June 1830[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[pp 329-330]

[Where an Attorney was concerned for three parties to a suit in Equity, one of them paid his proportion of the Attornies bill before it was taxed and another a portion of his share of the untaxed bill and the third having caused [p. 330] the whole bill to be taxed down to a sum which the two payments would cover  Held that the latter was not entitled to set off the payments made by his cosuiters in liquidation of the claim against himself.]

[p. 329]Rowe v O'Donnel & ors

The Plaintiff an Attorney of the Court had brought an Equity Suit on the retainer of O'Donnell Parnel and Small who had respectively married the three daughters of one Squires who had died Intestate leaving lands.  The Defendants obtained a decree  The Plaintiffs costs amounted to £212.  He brought an action against the three Defendants for the amount at the trial the Plaintiff had a verdict subject to reference to the Master to tax the bill of costs  The Master [p. 330] taxed the bill down to £112.10.0. the amount of which apportioned among the Defendants would make them liable to pay £37.10.0. each.  The Defendant Small had paid the Plaintiff one third of the bill of costs before it was taxed.  Another defendant had paid £60. and these two sums would more than cover the amount of the sum awarded to the Plaintiff by the Masters Allocator.[2 ]  A motion to refund the excess of the sum paid him over and above the amount of his taxed bill.  The motion was made by the defendant against the wishes of Small who had paid one third if the original Bill without objection.  The other Defendants now claimed to have the £60 and the 70 credited to them in payment of the account of the taxed bill, which sums would more then cover the amount  After hearing Forster contra and S. Stephen in support of the rule the [p. 331] Court thought that Small was at liberty if he pleased to pay the Plaintiff the whole amount of his one third of the untaxed bill. and that the other Defendants were not entitled to have the benefit of such payment in reduction of the Plaintiffs reduced demand.

Rule Discharged

 

Notes

[1 ] From its position in the notebooks, it is likely that this hearing was held in June 1830.  The Supreme Court also decided in 1830 that "The personal expences of a party employing an Attorney, in a Count cause are not allowable on taxation of Costs": Elder v. Leary, Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 1.

[2 ] Allocatur: it is allowed.   A certificate of taxation of costs issued by the taxing master.

Published by the Division of Law, Macquarie University