K Muc Trading As G H Healey & Co Sydney v Descaretes Pty Ltd [2006] NSWCA 69

K Muc Trading As G H Healey & Co Sydney v Descaretes Pty Ltd [2006] NSWCA 69

The evidence did not establish that Ms Lincoln could never have succeeded against Descaretes, nor did the circumstances justify a costs order under s 198M(1) of the Legal Profession Act 1987 (NSW) against Ms Muc. Accordingly, the default judgment was set aside, leave to appeal granted, and the Costs Order was overturned.

Jurisdiction
Australia
Judgment Date
24 April 2006
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld; default judgment set aside; application for leave to appeal granted; Costs Order set aside; costs awarded to Ms Muc.
Legal Topics
['costs Order Against Solicitor' 'reasonable Prospects of Success' 'standing to Appeal']
['civil Procedure' 'legal Profession Law'] ['costs Order Against Solicitor' 'reasonable Prospects of Success' 'standing to Appeal']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the Costs Order was properly made against Ms Muc as the proprietor of G H Healey & Co' 'Whether Ms Lincoln had a reasonably arguable case against Descaretes' 'Whether the Court should exercise discretion to set aside the default judgment']

Ratio Decidendi

The evidence did not establish that Ms Lincoln could never have succeeded against Descaretes, nor did the circumstances justify a costs order under s 198M(1) of the Legal Profession Act 1987 (NSW) against Ms Muc. Accordingly, the default judgment was set aside, leave to appeal granted, and the Costs Order was overturned.

Court Disposition

Appeal upheld; default judgment set aside; application for leave to appeal granted; Costs Order set aside; costs awarded to Ms Muc.

Orders

  • ['The default judgment dismissing the application for leave to appeal is set aside.' 'Ms Muc pay the costs thrown away in consequence of that judgment being granted by default, including the costs of the attendance by counsel for Descaretes on 21 February 2006.' 'The application for leave to appeal against the Costs...