Riz & 1 or v Perpetual Trustee Australia Ltd & 4 ors (Costs) [2007] NSWSC 1488

Riz & 1 or v Perpetual Trustee Australia Ltd & 4 ors (Costs) [2007] NSWSC 1488

The unsuccessful defendant DDS should not indemnify the plaintiffs' liability for Perpetual's costs, as DDS's conduct was not a substantial cause of the litigation against Perpetual and the relevant criteria for a Bullock or Sanderson order were not met. Further, the costs incurred by plaintiffs in their unsuccessful claim against Perpetual under the Contracts Review Act do not fall within 'costs of default' or as reasonable enforcement costs recoverable from DDS.

Parties
First Plaintiff/first Cross Defendant: Omar Riz; Second Plaintiff/second Cross Defendant: Amal Riz; First Defendant/cross Claimant: Perpetual Trustee Australia Limited; Second Defendant: Direct Mortgage Solutions Pty Limited; Third Defendant: Manuelpillia Paul Dominic; Fourth Defendant: Suzy David; Fifth Defendant: Fred David
Jurisdiction
Australia
Judgment Date
13 November 2007
Procedural Posture
Costs Decision / Post Judgment Determination of Costs
Outcome
No sufficient reason to make unsuccessful defendant liable for successful defendant's costs
Legal Topics
Bullock Order, Sanderson Order, Contracts Review Act (nsw), Professional Negligence of Solicitors
Costs Contract Law Professional Negligence Bullock Order Sanderson Order Contracts Review Act (nsw) Professional Negligence of Solicitors

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Parties

Omar Riz

First Plaintiff/first Cross Defendant

Amal Riz

Second Plaintiff/second Cross Defendant

Perpetual Trustee Australia Limited

First Defendant/cross Claimant

Direct Mortgage Solutions Pty Limited

Second Defendant

Manuelpillia Paul Dominic

Third Defendant

Suzy David

Fourth Defendant

Fred David

Fifth Defendant

Procedural Posture

Costs Decision / Post Judgment Determination of Costs

Legal Issues

  1. 1 Whether the unsuccessful defendant (DDS) should indemnify the plaintiff for legal costs owed by plaintiffs to the successful defendant (Perpetual)
  2. 2 Whether costs of unsuccessful Contracts Review Act claim against Perpetual can be recovered from DDS as damages or under Bullock/Sanderson order

Ratio Decidendi

The unsuccessful defendant DDS should not indemnify the plaintiffs' liability for Perpetual's costs, as DDS's conduct was not a substantial cause of the litigation against Perpetual and the relevant criteria for a Bullock or Sanderson order were not met. Further, the costs incurred by plaintiffs in their unsuccessful claim against Perpetual under the Contracts Review Act do not fall within 'costs of default' or as reasonable enforcement costs recoverable from DDS.

Court Disposition

No sufficient reason to make unsuccessful defendant liable for successful defendant's costs

Orders

  • Plaintiffs' claims against the first and second defendants dismissed
  • Plaintiffs/cross-defendants to pay the first defendant/cross-claimant the sum of $765,477.03 (inclusive of costs)