Gilles v La Rosa (No 2) [2018] NSWCA 297

Gilles v La Rosa (No 2) [2018] NSWCA 297

Leave to appeal was refused because no error of principle was demonstrated in the primary judge's discretionary costs order. The primary judge was entitled to consider that the declaratory and caveat relief lacked utility, to assess the Firm's likely prospects, to take into account the Clients' available set-off which rendered the Firm's claim futile, and to account for the late raising of set-off when fixing costs. The matter raised no issue of principle warranting leave, particularly given the small amount involved.

Jurisdiction
Australia
Judgment Date
04 December 2018
Procedural Posture
Application for Leave to Appeal From a Costs Order / Court of Appeal Summons Seeking Leave to Appeal From a Costs Order Made in the Equity Division
Outcome
Summons seeking leave to appeal dismissed; applicant ordered to pay respondents' costs fixed at $15,000; respondents' motion otherwise dismissed.
Legal Topics
['leave to Appeal From Discretionary Costs Order' 'gross Sum Costs Order' 'costs Where Proceedings Become Futile' 'set Off of Mutual Debts' 'costs Follow the Event']
['civil Procedure' 'costs' 'appeals'] ['leave to Appeal From Discretionary Costs Order' 'gross Sum Costs Order' 'costs Where Proceedings Become Futile' 'set Off of Mutual Debts' 'costs Follow the Event']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Costs Order / Court of Appeal Summons Seeking Leave to Appeal From a Costs Order Made in the Equity Division

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the lump sum costs order made by Emmett AJA.' "Whether the primary judge erred in principle in ordering the Firm to pay the Clients' costs where the substantive proceedings were said to have been disposed of by consent or rendered futile." "Whether the primary judge erred in considering the likely merits of the Firm's declaratory claim and the availability of set-off when exercising the costs discretion."]

Ratio Decidendi

Leave to appeal was refused because no error of principle was demonstrated in the primary judge's discretionary costs order. The primary judge was entitled to consider that the declaratory and caveat relief lacked utility, to assess the Firm's likely prospects, to take into account the Clients' available set-off which rendered the Firm's claim futile, and to account for the late raising of set-off when fixing costs. The matter raised no issue of principle warranting leave, particularly given the small amount involved.

Court Disposition

Summons seeking leave to appeal dismissed; applicant ordered to pay respondents' costs fixed at $15,000; respondents' motion otherwise dismissed.

Orders

  • ['Dismiss the summons seeking leave to appeal from the costs order made in the Equity Division.' "Order that the applicant pay the respondents' costs fixed in the sum of $15,000." "Otherwise dismiss the respondents' motion filed 14 September 2018."]