Gilles v La Rosa [2018] NSWSC 920

Gilles v La Rosa [2018] NSWSC 920

The proceedings were dismissed as the defendants' right to set-off their judgment for costs from the District Court against the plaintiffs' solicitors' claim exceeded the amount claimed, leaving no utility in further proceedings or the caveat. The plaintiff's misconceived claim for primarily interlocutory relief and failure to plead for final relief, combined with the mutual debts, justified dismissal of both claim and cross-claim. Costs were fixed having regard to both parties' conduct and partial responsibility for unnecessary costs incurred.

Parties
First Plaintiff and First Cross Defendant: Joseph John Gilles; Second Plaintiff and Second Cross Defendant: Gregory Eliades; First Defendant and First Cross Claimant: Rosa La Rosa as executor of the Estate of the Late Giovanni La Rosa; Second Defendant and Second Cross Claimant: Rosa La Rosa
Jurisdiction
Australia
Judgment Date
21 June 2018
Procedural Posture
Equity / Final Orders After Costs Assessment and Set Off
Outcome
Plaintiffs’ claim dismissed; cross-claim otherwise dismissed; plaintiffs to pay defendants’ costs fixed at $30,000; vacation of hearing date and notice of withdrawal of caveat ordered.
Legal Topics
Set Off, Costs Assessment, Security for Costs, Undue Influence, Solicitor Client Costs Agreements, Caveat, Declaratory Relief
Civil Procedure Equity Set Off Costs Assessment Security for Costs Undue Influence Solicitor Client Costs Agreements Caveat +1 more

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Parties

Joseph John Gilles

First Plaintiff and First Cross Defendant

Gregory Eliades

Second Plaintiff and Second Cross Defendant

Rosa La Rosa as executor of the Estate of the Late Giovanni La Rosa

First Defendant and First Cross Claimant

Rosa La Rosa

Second Defendant and Second Cross Claimant

Procedural Posture

Equity / Final Orders After Costs Assessment and Set Off

Legal Issues

  1. 1 Whether the proceedings have utility given operation of set-off for mutual debts
  2. 2 Whether solicitor's costs agreements are enforceable or void for undue influence
  3. 3 Whether solicitor's right to security for costs (including caveat) is valid/enforceable

Ratio Decidendi

The proceedings were dismissed as the defendants' right to set-off their judgment for costs from the District Court against the plaintiffs' solicitors' claim exceeded the amount claimed, leaving no utility in further proceedings or the caveat. The plaintiff's misconceived claim for primarily interlocutory relief and failure to plead for final relief, combined with the mutual debts, justified dismissal of both claim and cross-claim. Costs were fixed having regard to both parties' conduct and partial responsibility for unnecessary costs incurred.

Court Disposition

Plaintiffs’ claim dismissed; cross-claim otherwise dismissed; plaintiffs to pay defendants’ costs fixed at $30,000; vacation of hearing date and notice of withdrawal of caveat ordered.

Orders

  • Order that the summons be dismissed.
  • Order the plaintiffs to lodge in registrable form a Notice of Withdrawal of Caveat No AJ547705.