Rodi v Gelonesi [2016] NSWCA 348

Rodi v Gelonesi [2016] NSWCA 348

The amended notice of motion was dismissed because, even assuming jurisdiction, there were strong discretionary reasons not to make a personal costs order. The delay of over three years was egregious and almost wholly unexplained, the application was not supported by cogent evidence, the matters relied on did not establish that costs were incurred by serious neglect, serious incompetence, serious misconduct, improperly or without reasonable cause for which Mr Muriniti was responsible, and the attempt to show that the District Court proceedings or leave application lacked reasonable prospects failed.

Jurisdiction
Australia
Judgment Date
13 December 2016
Procedural Posture
Notice of Motion for Personal Costs Order Against Solicitor / On the Papers; Amended Notice of Motion Filed on 8 November 2016 After Leave to Appeal Was Refused With Costs in 2012
Outcome
Amended notice of motion dismissed with costs.
Legal Topics
['variation of Costs Order' 'personal Costs Order Against Solicitor' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'civil Procedure Act 2005 (nsw) Ss 98 and 99' 'delay' 'legal Practitioner Liability for Unnecessary Costs']
['practice and Procedure' 'costs'] ['variation of Costs Order' 'personal Costs Order Against Solicitor' 'uniform Civil Procedure Rules 2005 (nsw) R 36.16' 'civil Procedure Act 2005 (nsw) Ss 98 and 99' 'delay' 'legal Practitioner Liability for Unnecessary Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Personal Costs Order Against Solicitor / On the Papers; Amended Notice of Motion Filed on 8 November 2016 After Leave to Appeal Was Refused With Costs in 2012

Legal Issues

  1. 1 ['Whether the 14-day time limit in Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) precluded the application for a personal costs order against Mr Muriniti.' 'Whether an order under ss 98(1)(b) or 99 of the Civil Procedure Act 2005 (NSW) requiring Mr Muriniti to pay or indemnify costs would be a variation of the costs orders made in 2012 or a supplemental order.' "Whether the Court should exercise its discretion to make a personal costs order despite the applicant's delay." 'Whether costs had been incurred by serious neglect, serious incompetence or serious misconduct of a legal practitioner, or improperly or without reasonable cause in circumstances for which a legal practitioner was responsible.' 'Whether the District Court proceedings or the application for leave to appeal had no reasonable prospects of success so as to support a personal costs order.']

Ratio Decidendi

The amended notice of motion was dismissed because, even assuming jurisdiction, there were strong discretionary reasons not to make a personal costs order. The delay of over three years was egregious and almost wholly unexplained, the application was not supported by cogent evidence, the matters relied on did not establish that costs were incurred by serious neglect, serious incompetence, serious misconduct, improperly or without reasonable cause for which Mr Muriniti was responsible, and the attempt to show that the District Court proceedings or leave application lacked reasonable prospects failed.

Court Disposition

Amended notice of motion dismissed with costs.

Orders

  • ['Dismiss the amended notice of motion filed on 8 November 2016 with costs.']