Degiorgio v Dunn (No 2) [2005] NSWSC 3

Degiorgio v Dunn (No 2) [2005] NSWSC 3

The defendant's applications for indemnity costs against both the plaintiff and the plaintiff's solicitor were dismissed. The Court found that the solicitor had an objectively reasonable basis and genuine belief in the arguability of the claim at all material times; therefore, legal services were not provided without reasonable prospects of success within the meaning of the Legal Profession Act 1987 s.198M. Similarly, there was no basis for indemnity costs against the plaintiff as the plaintiff relied on legal advice and there was no relevant delinquency. The threshold for 'without reasonable prospects of success' is not met unless the claim is so lacking in merit as to be not fairly...

Jurisdiction
Australia
Judgment Date
01 February 2005
Procedural Posture
Application for Indemnity Costs / Post Trial Costs Application Following Dismissal of Substantive Claim
Outcome
Applications for indemnity costs against plaintiff and plaintiff's solicitor dismissed.
Legal Topics
['indemnity Costs' 'costs Against Legal Practitioners' 'reasonable Prospects of Success' 'partnership Disputes']
['civil Procedure' 'legal Profession' 'equity'] ['indemnity Costs' 'costs Against Legal Practitioners' 'reasonable Prospects of Success' 'partnership Disputes']

Case Brief

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Procedural Posture

Application for Indemnity Costs / Post Trial Costs Application Following Dismissal of Substantive Claim

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered against the plaintiff.' "Whether the plaintiff's solicitor should personally be liable for indemnity costs under Legal Profession Act 1987 s198M or Supreme Court Rules, Part 52A rule 43." "Construction of 'proceedings on a claim for damages' for the purposes of the Legal Profession Act 1987, Division 5C."]

Ratio Decidendi

The defendant's applications for indemnity costs against both the plaintiff and the plaintiff's solicitor were dismissed. The Court found that the solicitor had an objectively reasonable basis and genuine belief in the arguability of the claim at all material times; therefore, legal services were not provided without reasonable prospects of success within the meaning of the Legal Profession Act 1987 s.198M. Similarly, there was no basis for indemnity costs against the plaintiff as the plaintiff relied on legal advice and there was no relevant delinquency. The threshold for 'without reasonable prospects of success' is not met unless the claim is so lacking in merit as to be not fairly...

Court Disposition

Applications for indemnity costs against plaintiff and plaintiff's solicitor dismissed.

Orders

  • ["The defendant's notice of motion filed on 1 October 2004 is dismissed with costs." "In the substantive proceedings, the plaintiff is to pay the defendant's party/party costs."]