De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 5) [2015] NSWDC 8

De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 5) [2015] NSWDC 8

Where the presumption under s 349 Legal Profession Act of lack of reasonable prospects is not established (because facts at trial provided reasonable basis for claim), an application for a costs indemnity order under s 348 cannot succeed against solicitor and counsel, except in respect of the seventh cross-defendant. Applications not fully ventilated, notably that of the Trustee, cannot be summarily dismissed in advance of hearing.

Jurisdiction
Australia
Judgment Date
10 February 2015
Procedural Posture
Civil / Procedural Ruling on Applications Under Notices of Motion for Costs Orders Against Legal Practitioners
Outcome
Applications dismissed in part; reserved as to costs and undecided applications; listing for directions ordered.
Legal Topics
['costs Against Legal Practitioners' 'reasonable Prospects of Success' 'summary Judgment' 'natural Justice']
['civil Procedure' 'professional Liability'] ['costs Against Legal Practitioners' 'reasonable Prospects of Success' 'summary Judgment' 'natural Justice']

Case Brief

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Procedural Posture

Civil / Procedural Ruling on Applications Under Notices of Motion for Costs Orders Against Legal Practitioners

Legal Issues

  1. 1 ['Whether legal practitioners provided legal services without reasonable prospects of success' 'Whether costs orders under s 348 Legal Profession Act and s 99 Civil Procedure Act should be made against solicitor or counsel' 'Applicability of rebuttable presumption under s 349 Legal Profession Act']

Ratio Decidendi

Where the presumption under s 349 Legal Profession Act of lack of reasonable prospects is not established (because facts at trial provided reasonable basis for claim), an application for a costs indemnity order under s 348 cannot succeed against solicitor and counsel, except in respect of the seventh cross-defendant. Applications not fully ventilated, notably that of the Trustee, cannot be summarily dismissed in advance of hearing.

Court Disposition

Applications dismissed in part; reserved as to costs and undecided applications; listing for directions ordered.

Orders

  • ['Dismiss paragraphs 3 and 4 of the De Costi motion except insofar as they relate to the seventh cross-defendant.' 'Otherwise dismiss the application by Mr Newell and Mr Muriniti.' 'Reserve all questions of costs.' 'Residue of the notices of motion to be listed for directions at a convenient date.']