Cairncross v Anderson t/as ERA Legal (No 3) [2016] NSWSC 1478

Cairncross v Anderson t/as ERA Legal (No 3) [2016] NSWSC 1478

Although the defendants' motion failed, it was not so devoid of legal merit as to justify indemnity costs: the breadth of advocate's immunity remained contestable, judicial minds might reasonably differ on the approach to the question left open in Attwells, there was no futile dispute about incontrovertible facts, and no basis to find an ulterior purpose. The ordinary costs rule therefore applied.

Jurisdiction
Australia
Judgment Date
18 October 2016
Procedural Posture
Costs Application Following Dismissal of Notice of Motion Founded on Advocate's Immunity / In Chambers; Determination of Reserved Costs Question
Outcome
Application for indemnity costs refused; defendants ordered to pay the plaintiff's costs of the motion on the ordinary basis.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' "advocate's Immunity" 'notice of Motion']
['costs' 'civil Procedure'] ['indemnity Costs' 'ordinary Basis Costs' "advocate's Immunity" 'notice of Motion']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Notice of Motion Founded on Advocate's Immunity / In Chambers; Determination of Reserved Costs Question

Legal Issues

  1. 1 ["Whether the defendants' dismissed notice of motion was so lacking in merit as to warrant indemnity costs." 'Whether indemnity costs should be ordered for the whole motion or, alternatively, for costs incurred after Attwells v Jackson Lalic Lawyers Pty Limited was delivered.']

Ratio Decidendi

Although the defendants' motion failed, it was not so devoid of legal merit as to justify indemnity costs: the breadth of advocate's immunity remained contestable, judicial minds might reasonably differ on the approach to the question left open in Attwells, there was no futile dispute about incontrovertible facts, and no basis to find an ulterior purpose. The ordinary costs rule therefore applied.

Court Disposition

Application for indemnity costs refused; defendants ordered to pay the plaintiff's costs of the motion on the ordinary basis.

Orders

  • ['The defendants, Daren Anderson trading as ERA Legal and Gallande Pty Limited trading as ERA Legal, must pay the costs of the plaintiff, Ms Tiffany Cairncross, of the motion on the ordinary basis.']