Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 4) [2022] NSWSC 1624

Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 4) [2022] NSWSC 1624

Indemnity costs were justified in both the Riva damages proceedings and the receiver proceedings due to the conduct of Riva, including failing to replead maintainable causes of action and prolonging proceedings without proper basis. Solicitors represented by their own incorporated legal practices (FC1 and FC2) were entitled to recover professional costs and disbursements incurred as evidenced by tax invoices, as the relevant law recognises the separate legal personality of those practices and does not consider the solicitors as self-represented litigants in these circumstances. The Court, however, limited recovery to amounts strictly proved via existing invoices and declined to make...

Jurisdiction
Australia
Judgment Date
28 November 2022
Procedural Posture
Civil (equity) Costs/consequential Orders / Post Trial Application for Costs Orders and Quantification Following Final Resolution of Substantive Proceedings
Outcome
Indemnity costs ordered in favour of the solicitors with quantification as specified gross sum deferred for further submissions; costs are recoverable by incorporated legal practice for work proven by invoices; parties granted opportunity to make further submissions as to quantum and for costs incurred after...
Legal Topics
['costs — Indemnity Costs' 'costs — Self Represented Solicitors and Incorporated Legal Practice' 'chorley Exception' 'specified Gross Sum Costs Order' 'professional Fees and Disbursements' 'civil Procedure Act 2005 S 98(4)(c)' 'legal Profession Uniform Law' 'corporate Veil in Cost Recovery']
['equity' 'civil Procedure' 'legal Profession'] ['costs — Indemnity Costs' 'costs — Self Represented Solicitors and Incorporated Legal Practice' 'chorley Exception' 'specified Gross Sum Costs Order' 'professional Fees and Disbursements' 'civil Procedure Act 2005 S 98(4)(c)' 'legal Profession Uniform Law' 'corporate Veil in Cost Recovery']

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Procedural Posture

Civil (equity) Costs/consequential Orders / Post Trial Application for Costs Orders and Quantification Following Final Resolution of Substantive Proceedings

Legal Issues

  1. 1 ['Whether indemnity costs ought to be awarded instead of costs on the ordinary basis' 'Whether solicitors using an incorporated legal practice can recover professional costs for legal work done by or for themselves after the Chorley exception was abolished' 'Whether sufficient evidence of a contractual liability exists for recovery of professional costs/disbursements' 'Whether a specified gross sum costs order (rather than assessed costs) should be made and, if so, the quantum']

Ratio Decidendi

Indemnity costs were justified in both the Riva damages proceedings and the receiver proceedings due to the conduct of Riva, including failing to replead maintainable causes of action and prolonging proceedings without proper basis. Solicitors represented by their own incorporated legal practices (FC1 and FC2) were entitled to recover professional costs and disbursements incurred as evidenced by tax invoices, as the relevant law recognises the separate legal personality of those practices and does not consider the solicitors as self-represented litigants in these circumstances. The Court, however, limited recovery to amounts strictly proved via existing invoices and declined to make...

Court Disposition

Indemnity costs ordered in favour of the solicitors with quantification as specified gross sum deferred for further submissions; costs are recoverable by incorporated legal practice for work proven by invoices; parties granted opportunity to make further submissions as to quantum and for costs incurred after...

Orders

  • ["Riva to pay indemnity costs to the FCL parties in both the Riva damages proceedings (until 30 November 2019) and the receiver proceedings (until 11 April 2018), limited to professional costs, counsel's fees, and disbursements to the extent proven." 'The Court notes its proposed quantification of $14,168.30 as...