Homsi v Pasquale (No. 3) [2018] NSWDC 279

Homsi v Pasquale (No. 3) [2018] NSWDC 279

Although Mr Di Michiel succeeded in resisting the earlier motion, costs did not follow the event because the circumstances included disentitling conduct and conduct that effectively invited the application, particularly as to the defendant, and Mr Di Michiel advanced an all-or-nothing costs position without proposing apportionment. The defendant, who was drawn into the matter and had suspicions arising from the way the claim was prosecuted, should not pay the respondent's costs. The plaintiff also obtained no order as to the motion costs, but separately had to pay the respondent's costs of the appearances on 22 and 24 May 2018 because compliance with the notice to produce issued on 19...

Jurisdiction
Australia
Judgment Date
05 October 2018
Procedural Posture
Civil Costs Application / Application by the Respondent for Costs After Dismissal of a Notice of Motion Seeking Costs Against the Plaintiff's Former Solicitor
Outcome
The respondent's application for costs of the motion filed on 27 February 2018 was dismissed, with each party to pay his, her or its own costs of the application, but the plaintiff was ordered to pay the respondent's reserved costs of appearances on 22 and 24 May 2018 relating to the notice to produce.
Legal Topics
['costs Following the Event' 'disentitling Conduct' 'costs Against Solicitors Personally' 'notice to Produce' 'withdrawal of Legal Representative']
['civil Procedure' 'costs'] ['costs Following the Event' 'disentitling Conduct' 'costs Against Solicitors Personally' 'notice to Produce' 'withdrawal of Legal Representative']

Case Brief

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Procedural Posture

Civil Costs Application / Application by the Respondent for Costs After Dismissal of a Notice of Motion Seeking Costs Against the Plaintiff's Former Solicitor

Legal Issues

  1. 1 ['Whether the successful respondent to the notice of motion should be awarded costs of the motion filed on 27 February 2018.' "Whether the respondent's conduct was disentitling conduct that justified departure from the ordinary rule that costs follow the event." "Whether the defendant should bear the respondent's costs where the defendant was not the moving party and had been drawn into the application." 'Whether the plaintiff should pay reserved costs arising from non-compliance with a notice to produce.']

Ratio Decidendi

Although Mr Di Michiel succeeded in resisting the earlier motion, costs did not follow the event because the circumstances included disentitling conduct and conduct that effectively invited the application, particularly as to the defendant, and Mr Di Michiel advanced an all-or-nothing costs position without proposing apportionment. The defendant, who was drawn into the matter and had suspicions arising from the way the claim was prosecuted, should not pay the respondent's costs. The plaintiff also obtained no order as to the motion costs, but separately had to pay the respondent's costs of the appearances on 22 and 24 May 2018 because compliance with the notice to produce issued on 19...

Court Disposition

The respondent's application for costs of the motion filed on 27 February 2018 was dismissed, with each party to pay his, her or its own costs of the application, but the plaintiff was ordered to pay the respondent's reserved costs of appearances on 22 and 24 May 2018 relating to the notice to produce.

Orders

  • ["Plaintiff pay the respondent's costs of the appearances on 22 and 24 May 2018 in relation to the notice to produce served by the respondent, Mr Jason Di Michiel trading as Premier Compensation Lawyers Pty Ltd." 'Application by the respondent, Mr Jason Di Michiel trading as Premier Compensation Lawyers Pty Ltd, for...