Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) [2022] NSWDC 294

Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) [2022] NSWDC 294

Mr Gokani, solicitor for Vitarag Pty Ltd, acted without a reasonable belief in the prospects of success for the defence. There was compelling documentary evidence against Vitarag as borrower and no evidence to the contrary was presented. The defence was maintained without reasonable cause, resulting in costs incurred for which Mr Gokani is personally liable under s 99 of the Civil Procedure Act 2005 and clause 5 of Schedule 2 of Legal Profession Uniform Law Application Act 2014, from the date the defence was filed onwards.

Parties
Plaintiff/applicant: Visvalingam Pty Ltd; First Defendant: Vitarag Pty Ltd; Second Defendant: Ashish Nanubhai Patel; Respondent: Anand Kantilal Gokani
Jurisdiction
Australia
Judgment Date
26 July 2022
Procedural Posture
Civil / Costs Determination After Trial
Outcome
Order for costs against the solicitor for first defendant.
Legal Topics
Costs, Personal Costs Orders Against Lawyers, Reasonable Prospects of Success, Claim for Damages
Civil Procedure Costs Personal Costs Orders Against Lawyers Reasonable Prospects of Success Claim for Damages

Case Brief

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Parties

Visvalingam Pty Ltd

Plaintiff/applicant

Vitarag Pty Ltd

First Defendant

Ashish Nanubhai Patel

Second Defendant

Anand Kantilal Gokani

Respondent

Procedural Posture

Civil / Costs Determination After Trial

Legal Issues

  1. 1 Whether the solicitor for the first defendant, Anand Gokani, acted without reasonable prospects of success in defending the claim and should pay the plaintiff's costs on an indemnity basis.
  2. 2 Whether the claim constituted a 'claim for damages' within the meaning of the relevant statutory provisions.

Ratio Decidendi

Mr Gokani, solicitor for Vitarag Pty Ltd, acted without a reasonable belief in the prospects of success for the defence. There was compelling documentary evidence against Vitarag as borrower and no evidence to the contrary was presented. The defence was maintained without reasonable cause, resulting in costs incurred for which Mr Gokani is personally liable under s 99 of the Civil Procedure Act 2005 and clause 5 of Schedule 2 of Legal Profession Uniform Law Application Act 2014, from the date the defence was filed onwards.

Court Disposition

Order for costs against the solicitor for first defendant.

Orders

  • Anand Gokani, solicitor for the first defendant, pay the plaintiff's costs of the proceedings on an indemnity basis, including the costs of the motion, incurred on and from the date of the filing of the defence on 16 April 2018.