| Nadarajapillai v Naderasa (No 2) (NSWCA) - costs - solicitor’s misconduct incurred costs improperly and without reasonable cause - costs order against solicitor (I) |
| Bevic Holdings Pty Ltd v Wright (NSWCA) - statutory demand - refusal to set aside statutory demand - leave to appeal refused (B) |
| Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) (NSWCA) - costs - offers of compromise - indemnity costs refused (I B C) |
| Dean v Phung (NSWSC) - costs - damages - defence conducted by insurer - no improper conduct by insurer warranting costs order against it (I) |
| Winky Pop v Mobil (VSC) - damages - petroleum leak - basis for measurement of damages - plaintiffs entitled to sum for costs incurred in investigating leak (I B C) |
| Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd (No 2) (QSC) - costs - defamation - defendants’ application to strike out imputations partially successful - plaintiff to pay 50% of defendants’ costs (I) |
| Design Joinery & Doors Pty Ltd v IPower Pty Ltd (No 2) (SASC) - costs - judgment for plaintiffs reduced on defendant’s appeal - mixed success - conduct - costs orders (B C) |
| Summaries With Link (Five Minute Read) |
Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209
Court of Appeal of New South Wales
McColl, Macfarlan & Emmett JJA
Costs - legal practitioners - solicitors duties - application for costs against legal representative - Court ordered dismissal of appeal - respondent Lender sought order that solicitor for appellant Borrower, who appeared for Borrower on hearing of appeal, pay Lender amount of costs Borrower was ordered to pay - Court’s general power to order a legal representative to personally pay opposing party’s costs directly - ss56 & 99 Civil Procedure Act 2005 (NSW) - held: solicitor’s conduct in instituting and maintaining appeal with no prospects of success and no merit constituted serious incompetence as a legal practitioner - costs had been incurred improperly and without reasonable cause in circumstances for which solicitor was responsible - solicitor should bear costs that Borrower was ordered to pay to Lender.
Nadarajapillai (I)
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Bevic Holdings Pty Ltd v Wright [2015] NSWCA 210
Court of Appeal of New South Wales
McColl JA; Sackville AJA
Statutory demand - applicant sought leave to appeal from primary judge’s decision to decline application pursuant to s459G Corporations Act 2001 (Cth) to set aside a statutory demand served by respondent pursuant to s459E - held: application did not rise above contention advanced below that applicant wished to put respondent to proof - applicant’s case did not rise above mere assertion based on “suspicion and uncertainty” insufficient to succeed on s459G application - applicant failed to identify issue of principle, question of general public importance or injustice warranting grant of leave to appeal - application dismissed.
Bevic (B)
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Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208
Court of Appeal of New South Wales
Macfarlan, Gleeson & Leeming JJA
Costs - offer of compromise - Court allowed appeal in proceedings - appellant sought order for indemnity costs on basis of offers of compromise - rr20.26, 42.14 & 51.47 Uniform Civil Procedure Rules 2005 (NSW) - held: offers complied with Rules - Council not shown to be unreasonable in refusing offers of compromise in circumstances where subject matter of proceeding was declaratory relief, point was of general importance, acceptance of offer would have deprived Court of benefit of argument and Council was only appropriate contradictor - special costs order refused.
Jojeni (I B C)
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Dean v Phung [2015] NSWSC 816
Supreme Court of New South Wales
Beech-Jones J
Costs - defendant performed dental services on plaintiff that were grossly excessive - plaintiff succeeded in negligence claim against defendant and obtained judgment for damages - trial judge rejected plaintiff’s claim in trespass to person and for award of damages including exemplary damages - Court of Appeal found plaintiff succeeded in battery and entitled to damages including exemplary damages not calculated in accordance with Civil Liability Act 2002 (NSW) - insurer declined to further indemnify defendant - plaintiff sought that insurer pay his costs of proceedings at first instance - plaintiff contended lawyers on insurer’s behalf effectively represented to him that insurance cover would be afforded to defendant even if finding of fraud or deliberate misconduct made against him, which induced him to maintain allegations in his pleading - held: lawyers did not make alleged representation - defendant did not establish any aspect of insurer’s conduct of proceedings on behalf of defendant warranted costs order being made against it - notice of motion dismissed.
Dean (I)
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Winky Pop v Mobil [2015] VSC 348
Supreme Court of Victoria
Digby J
Damages - negligence - nuisance - claim arising from petroleum leak (Mobil leak) which created plume of petroleum hydrocarbon in groundwater underneath plaintiffs’ land - plaintiffs claimed against Mobil in negligence, nuisance, and for compensation under s151 Pipelines Act 2005 (Vic) - plaintiffs also claimed against State in negligence - Mobil admitted it contaminated plaintiffs’ land and conceded responsibility for leak and clean up - appropriate form of relief - held: proper basis for measurement of damages was diminution in value of plaintiffs’ land - plaintiffs did not establish they had or but for Mobil leak would have had opportunity to develop plaintiffs’ land residentially - plaintiffs had not lost opportunity to develop plaintiffs’ land because of Mobil leak - opportunity to develop plaintiffs’ land residentially had no real prospect of being successfully pursued - Mobil leak would not prevent or impair plaintiffs’ ability to develop land for residential purposes - plaintiffs are entitled to be paid sum of $104,273.93 with interest by Mobil in relation to their costs incurred in investigating the Mobil leak.
Winky (I B C)
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Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd (No 2) [2015] QSC 203
Supreme Court of Queensland
Flanagan J
Costs - defamation - defendants partly successful in application to strike out plaintiff’s imputations - defendants sought order that plaintiff pay their costs of application or 75% of their costs - plaintiff sought that defendants pay its cost of application or 75% of its costs of application - whether defendants failed to facilitate just and expeditious resolution of real issues in proceedings - held: prior to defendants delivering submissions they did not identify objections to statement of claim as requested -meaningful response from defendants may have shortened hearing - given defendants only partially successful in strike-out application and wholly unsuccessful in relation to striking out certain imputations, appropriate that plaintiff pay 50% of defendants’ costs.
Baboolal (I)
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Design Joinery & Doors Pty Ltd v IPower Pty Ltd (No 2) SASC 102
Supreme Court of South Australia
Blue J
Costs - Magistrate gave judgment for plaintiffs - judgment reduced on appeal - determination of liability in contract was reversed but plaintiffs’ alternative restitution cause of action successful - defendant sought order for costs of appeal except hearing on restitution, and order for costs or part thereof of action in Magistrate’s Court - plaintiffs sought costs of appeal and costs of action in Magistrate’s Court except for application to reopen - held: plaintiffs to pay defendant’s costs thrown away on appeal due their failure to file notice of alternative contention - no order as to costs of appeal - order that plaintiffs pay the defendant’s costs of application to reopen on Supreme Court Scale not disturbed - no order as to costs of action.
Design (B C)
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