Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931

Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931

The barrister's conduct of the probate litigation was seriously incompetent, including inadequate pleadings, failure to understand admissibility, ineffective handling of witnesses and expert evidence, and pursuit of unarguable matters. That incompetence caused the hearing to take about two days longer than it should have and caused the defendant/cross-claimant to incur unnecessary costs. Section 99(2)(c) empowered the court to order the barrister to indemnify the defendant/cross-claimant against costs payable by her to her lawyers, and it was proper and just to fix the indemnity at $9,000 rather than require a full assessment.

Jurisdiction
Australia
Judgment Date
23 August 2007
Procedural Posture
Notice of Motion for Costs in a Contested Probate Action / Judgment on Notice of Motion for Costs
Outcome
Application allowed in part; the respondent barrister was ordered to indemnify the defendant/cross-claimant for $9,000 and to pay the applicant's costs of the notice of motion.
Legal Topics
['unnecessary Costs' 'personal Costs Order Against Barrister' 'serious Incompetence of Counsel' 'civil Procedure Act 2005 S99(2)(c)' 'contested Probate Proceedings']
['costs' 'legal Practitioners' 'probate'] ['unnecessary Costs' 'personal Costs Order Against Barrister' 'serious Incompetence of Counsel' 'civil Procedure Act 2005 S99(2)(c)' 'contested Probate Proceedings']

Case Brief

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Procedural Posture

Notice of Motion for Costs in a Contested Probate Action / Judgment on Notice of Motion for Costs

Legal Issues

  1. 1 ['Whether the court had already finally determined the questions of costs.' "Whether the orders sought were beyond the court's power under s99 of the Civil Procedure Act 2005 or any inherent jurisdiction." 'Whether the application was brought for a purpose foreign to the principles underlying s99 of the Civil Procedure Act 2005.' 'Whether serious incompetence by the barrister caused the defendant/cross-claimant to incur unnecessary costs and justified an order for indemnity.']

Ratio Decidendi

The barrister's conduct of the probate litigation was seriously incompetent, including inadequate pleadings, failure to understand admissibility, ineffective handling of witnesses and expert evidence, and pursuit of unarguable matters. That incompetence caused the hearing to take about two days longer than it should have and caused the defendant/cross-claimant to incur unnecessary costs. Section 99(2)(c) empowered the court to order the barrister to indemnify the defendant/cross-claimant against costs payable by her to her lawyers, and it was proper and just to fix the indemnity at $9,000 rather than require a full assessment.

Court Disposition

Application allowed in part; the respondent barrister was ordered to indemnify the defendant/cross-claimant for $9,000 and to pay the applicant's costs of the notice of motion.

Orders

  • ['That Mr Asuzu, barrister, indemnify the defendant/cross-claimant against the costs payable by her to her lawyers to the extent of $9,000.' 'That amount be paid to the defendant/cross-claimant or as she directs within 28 days from this date.' "Order the respondent pay the applicant's costs of the notice of motion."]