Newell; Muriniti v De Costi [2018] NSWCA 49

Newell; Muriniti v De Costi [2018] NSWCA 49

Section 348 Legal Profession Act 2004 (NSW) allows indemnity orders in favour of any party other than the party to whom legal services were provided, where that party has paid or is liable for costs occasioned by claims brought without reasonable prospects of success; section 99 Civil Procedure Act 2005 (NSW) requires identification and causal connection between serious neglect, incompetence, or misconduct of each legal practitioner and resultant costs incurred; quantification must reflect those connections and cannot proceed on a generalised equal liability or combined assessment. The appeals were allowed in part and the quantification of indemnity referred for further determination.

Jurisdiction
Australia
Judgment Date
20 March 2018
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed; matter remitted for determination of quantum of indemnity costs.
Legal Topics
['indemnity Costs' 'legal Practitioner Liability' 'legal Profession Act 2004 (nsw)' 'civil Procedure Act 2005 (nsw)' 'wasted Costs Orders' 'statutory Interpretation' 'summary Procedure']
['costs' 'professional Responsibility' 'civil Procedure'] ['indemnity Costs' 'legal Practitioner Liability' 'legal Profession Act 2004 (nsw)' 'civil Procedure Act 2005 (nsw)' 'wasted Costs Orders' 'statutory Interpretation' 'summary Procedure']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the appellants were liable to indemnify the respondents under s 348 Legal Profession Act 2004 (NSW) and s 99 Civil Procedure Act 2005 (NSW)' 'Approach to quantification of indemnity costs' 'Drawing of adverse inferences under Jones v Dunkel' 'Impact of legal professional privilege on practitioner evidence' 'Appropriate procedure for applications under ss 348 and 349 Legal Profession Act']

Ratio Decidendi

Section 348 Legal Profession Act 2004 (NSW) allows indemnity orders in favour of any party other than the party to whom legal services were provided, where that party has paid or is liable for costs occasioned by claims brought without reasonable prospects of success; section 99 Civil Procedure Act 2005 (NSW) requires identification and causal connection between serious neglect, incompetence, or misconduct of each legal practitioner and resultant costs incurred; quantification must reflect those connections and cannot proceed on a generalised equal liability or combined assessment. The appeals were allowed in part and the quantification of indemnity referred for further determination.

Court Disposition

Appeal allowed in part; cross-appeal dismissed; matter remitted for determination of quantum of indemnity costs.

Orders

  • ['Grant leave to appeal where required.' 'Appeal allowed in part in both proceedings.' 'Cross-appeals dismissed in both proceedings.' 'Declare liability of Mr Newell to indemnify respondents for specific categories of costs, as detailed.' 'Declare liability of Mr Muriniti to indemnify respondents for specific...