Kendirjian v Ayoub (No 2) [2008] NSWCA 255

Kendirjian v Ayoub (No 2) [2008] NSWCA 255

Legal practitioners' serious neglect in preparing written submissions, resulting in wasted costs and breach of duty to assist the Court, justified indemnity costs order as per Civil Procedure Act s 56, s 98, s 99; practitioners liable to indemnify appellant for those costs and must apportion equally.

Parties
Appellant: David Anthony Kendirjian; Respondent: Cheree Elizabeth Ayoub; Appellant's Counsel: J W Conomos; Appellant's Solicitor: Eugene Lepore & Associates; Respondent's Solicitor: Abbott Tout Lawyers
Jurisdiction
Australia
Judgment Date
15 October 2008
Procedural Posture
Appeal / Consequential Orders After Costs Determination
Outcome
Indemnity costs ordered; legal practitioners to pay appellant 50% each of specified costs; appellant to pay respondent's costs on indemnity and ordinary basis as outlined.
Legal Topics
Wasted Costs, Indemnity Costs, Legal Practitioner Liability, Civil Procedure Act 2005 S 56 S 98 S 99, Supreme Court Rules 1970 Pt 51 R 40 R 46 R 47
Civil Procedure Legal Profession Wasted Costs Indemnity Costs Legal Practitioner Liability Civil Procedure Act 2005 S 56 S 98 S 99 Supreme Court Rules 1970 Pt 51 R 40 R 46 R 47

Case Brief

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Parties

David Anthony Kendirjian

Appellant

Cheree Elizabeth Ayoub

Respondent

J W Conomos

Appellant's Counsel

Eugene Lepore & Associates

Appellant's Solicitor

Abbott Tout Lawyers

Respondent's Solicitor

Procedural Posture

Appeal / Consequential Orders After Costs Determination

Legal Issues

  1. 1 Whether costs thrown away by the appellant's legal practitioners' serious neglect should be paid on an indemnity basis
  2. 2 Whether legal practitioners should be liable to indemnify client for wasted costs incurred due to their conduct
  3. 3 How costs should be apportioned between counsel and solicitor

Ratio Decidendi

Legal practitioners' serious neglect in preparing written submissions, resulting in wasted costs and breach of duty to assist the Court, justified indemnity costs order as per Civil Procedure Act s 56, s 98, s 99; practitioners liable to indemnify appellant for those costs and must apportion equally.

Court Disposition

Indemnity costs ordered; legal practitioners to pay appellant 50% each of specified costs; appellant to pay respondent's costs on indemnity and ordinary basis as outlined.

Orders

  • Appellant to pay on indemnity basis the respondent's costs of preparation for hearing on 29 October 2007, the hearing on 29 October 2007, preparation of written submissions dated 30 May 2007 and 12 November 2007, Notice of Motion dated 20 November 2007, hearing of Notice of Motion.
  • Appellant to pay remaining appeal costs on ordinary basis.