Angelo Ferella and Tiziana Ferella v Donato Lo Surdo and Maria Lo Surdo [2014] NSWSC 1775

Angelo Ferella and Tiziana Ferella v Donato Lo Surdo and Maria Lo Surdo [2014] NSWSC 1775

The summons as amended on 10 March 2014 was dismissed because the pleaded claim under s.373 of the Legal Profession Act 2004 disclosed no available cause of action in this Court. Leave to amend was refused because the first plaintiff gave no satisfactory explanation for failing to comply with earlier orders or for the delay, the amendment would significantly prejudice the defendants and prolong proceedings, and the first plaintiff would suffer no real prejudice because a fresh s.69 proceeding was not precluded. Indemnity costs were ordered against the first plaintiff because the summons had no prospect of success and was pursued dilatorily, causing unnecessary costs to the defendants.

Jurisdiction
Australia
Judgment Date
21 November 2014
Procedural Posture
Application for Review Pursuant to S373 of the Legal Profession Act 2004 and Application for Leave to File Amended Summons / Hearing of Summons
Outcome
Summons dismissed. Indemnity costs ordered in favour of the defendants against the first plaintiff only.
Legal Topics
['costs Assessment Review' 'leave to Amend Summons' 'failure to Comply With Court Orders' 'no Arguable Cause of Action' 'indemnity Costs']
['civil Procedure' 'costs' 'legal Profession'] ['costs Assessment Review' 'leave to Amend Summons' 'failure to Comply With Court Orders' 'no Arguable Cause of Action' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Review Pursuant to S373 of the Legal Profession Act 2004 and Application for Leave to File Amended Summons / Hearing of Summons

Legal Issues

  1. 1 ["Whether the plaintiffs' summons under s.373 of the Legal Profession Act 2004 disclosed an arguable cause of action." 'Whether leave should be granted to file an amended summons seeking relief under s.69 of the Supreme Court Act 1970.' 'Whether the defendants should receive indemnity costs.']

Ratio Decidendi

The summons as amended on 10 March 2014 was dismissed because the pleaded claim under s.373 of the Legal Profession Act 2004 disclosed no available cause of action in this Court. Leave to amend was refused because the first plaintiff gave no satisfactory explanation for failing to comply with earlier orders or for the delay, the amendment would significantly prejudice the defendants and prolong proceedings, and the first plaintiff would suffer no real prejudice because a fresh s.69 proceeding was not precluded. Indemnity costs were ordered against the first plaintiff because the summons had no prospect of success and was pursued dilatorily, causing unnecessary costs to the defendants.

Court Disposition

Summons dismissed. Indemnity costs ordered in favour of the defendants against the first plaintiff only.

Orders

  • ['Summons as amended on 10 March 2014 is dismissed.' 'Order made for indemnity costs in favour of the defendants against the first plaintiff only (Mr. Angelo Ferella).']