Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited & ors [2006] NSWSC 155

Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited & ors [2006] NSWSC 155

Ideal bore the burden of proving, to the civil standard understood in the Brigenshaw sense, facts satisfying the s99 criteria, causation, and justification for disallowing Dr. Doyle's solicitor/client costs. The supporting material did not do so: there was no evidence from an appropriate officer of Ideal about the institution and conduct of the appeal proceedings, and the material was inexact, indefinite and indirect. The statutory basis for disallowance was therefore not established, so the Notice of Motion was dismissed.

Jurisdiction
Australia
Judgment Date
17 March 2006
Procedural Posture
Notice of Motion Under S99(2) of the Civil Procedure Act 2005 (nsw) Seeking Disallowance of Solicitor/client Costs / Post Appeal Application Concerning Costs Incurred in Proceedings 30060/03
Outcome
Notice of Motion dismissed; each party to the Notice of Motion is to pay its own costs of and incidental to the Motion.
Legal Topics
['wasted Costs and Personal Costs Orders Against Legal Practitioners' 'disallowance of Solicitor/client Costs' 'serious Neglect, Serious Incompetence and Want of Reasonable Cause' 'burden and Standard of Proof']
['civil Procedure' 'costs' 'professional Responsibility'] ['wasted Costs and Personal Costs Orders Against Legal Practitioners' 'disallowance of Solicitor/client Costs' 'serious Neglect, Serious Incompetence and Want of Reasonable Cause' 'burden and Standard of Proof']

Case Brief

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Procedural Posture

Notice of Motion Under S99(2) of the Civil Procedure Act 2005 (nsw) Seeking Disallowance of Solicitor/client Costs / Post Appeal Application Concerning Costs Incurred in Proceedings 30060/03

Legal Issues

  1. 1 ["Whether the whole or any part of Dr. Doyle's proposed solicitor/client costs in proceedings 30060/03 should be disallowed under s99(2) of the Civil Procedure Act 2005 (NSW)." 'Whether Ideal proved costs were incurred by serious neglect, serious incompetence, or without reasonable cause in circumstances for which Dr. Doyle was responsible.' "Whether Ideal proved causation and facts justifying an order disallowing Dr. Doyle's costs." 'Whether the application was properly brought by Notice of Motion rather than by originating Summons.']

Ratio Decidendi

Ideal bore the burden of proving, to the civil standard understood in the Brigenshaw sense, facts satisfying the s99 criteria, causation, and justification for disallowing Dr. Doyle's solicitor/client costs. The supporting material did not do so: there was no evidence from an appropriate officer of Ideal about the institution and conduct of the appeal proceedings, and the material was inexact, indefinite and indirect. The statutory basis for disallowance was therefore not established, so the Notice of Motion was dismissed.

Court Disposition

Notice of Motion dismissed; each party to the Notice of Motion is to pay its own costs of and incidental to the Motion.

Orders

  • ['The Notice of Motion is dismissed.' 'Each party to the Notice of Motion is to pay its own costs of and incidental to the Motion.']