Dunn v The Trustee of the Lazic Family Trust [2023] NSWDC 296

Dunn v The Trustee of the Lazic Family Trust [2023] NSWDC 296

The relevant circumstances were the alleged unsatisfactory state of the pleadings. Mr Goldsmith, not Paul Rojas, was the solicitor on the record when the impugned pleading was drafted and filed, had carriage of the file, and signed the relevant certifications. The acquisition of Mr Goldsmith's practice by RCR Lawyers, Mr Goldsmith's employment by that firm, and the use of Mr Rojas' Online Court account to file a notice of change of solicitor did not make Mr Rojas responsible for those circumstances. Section 99(1) was not engaged, so the Court had no power under that provision to make the costs orders sought against him.

Jurisdiction
Australia
Judgment Date
26 July 2023
Procedural Posture
Civil Costs Application Against Legal Practitioner / Hearing of Amended Notice of Motion Seeking Costs and Indemnity Orders Arising From an Application to Amend the Statement of Claim
Outcome
The amended notice of motion was dismissed; the plaintiff was ordered to pay Paul Rojas' costs of the motion; and any stay of the costs orders made by Wilson J on 18 May 2023 was dissolved.
Legal Topics
['costs Order Against Legal Practitioner' 'civil Procedure Act 2005 [nsw] S 99(1)(b)' 'solicitor on the Record' 'amendment of Pleadings' 'responsibility for Circumstances in Which Costs Were Incurred']
['costs' 'civil Procedure' 'legal Profession'] ['costs Order Against Legal Practitioner' 'civil Procedure Act 2005 [nsw] S 99(1)(b)' 'solicitor on the Record' 'amendment of Pleadings' 'responsibility for Circumstances in Which Costs Were Incurred']

Case Brief

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Procedural Posture

Civil Costs Application Against Legal Practitioner / Hearing of Amended Notice of Motion Seeking Costs and Indemnity Orders Arising From an Application to Amend the Statement of Claim

Legal Issues

  1. 1 ['Whether Paul Rojas was a legal practitioner responsible for the circumstances in which costs were incurred within the meaning of Civil Procedure Act 2005 [NSW] s 99(1)(b).' 'Whether the asserted unsatisfactory state of the pleading provided a basis for a costs order against Paul Rojas.' "Whether the Court had power under s 99(1) to order Paul Rojas to pay the plaintiff's costs and indemnify the plaintiff for costs ordered in favour of the defendants."]

Ratio Decidendi

The relevant circumstances were the alleged unsatisfactory state of the pleadings. Mr Goldsmith, not Paul Rojas, was the solicitor on the record when the impugned pleading was drafted and filed, had carriage of the file, and signed the relevant certifications. The acquisition of Mr Goldsmith's practice by RCR Lawyers, Mr Goldsmith's employment by that firm, and the use of Mr Rojas' Online Court account to file a notice of change of solicitor did not make Mr Rojas responsible for those circumstances. Section 99(1) was not engaged, so the Court had no power under that provision to make the costs orders sought against him.

Court Disposition

The amended notice of motion was dismissed; the plaintiff was ordered to pay Paul Rojas' costs of the motion; and any stay of the costs orders made by Wilson J on 18 May 2023 was dissolved.

Orders

  • ['The amended notice of motion filed in court today be dismissed.' "The plaintiff pay Paul Rojas' costs of that motion." 'Any stay that is currently in place in relation to the costs orders ordered by Wilson J on 18 May 2023 is dissolved.']