Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2019] NSWDC 348

Riva NSW Pty Ltd (ACN 113 881 815) v Mark A Fraser & Christopher P Clancy t/as Fraser Clancy Lawyers (ABN 27 526 211 743) [2019] NSWDC 348

The plaintiff failed to comply with the overriding purpose in s56 of the Civil Procedure Act, repeatedly pursued baseless, hopeless, vexatious and misconceived applications, failed to comply with court orders, misled the Court and third parties, gave or relied on untruthful evidence, and caused the defendants to incur gross and unnecessary costs. Those matters constituted sufficient unusual features and relevant delinquency justifying indemnity costs and interest, and also warranted directions for referrals concerning Angelo Ferella, Tiziana Ferella and the plaintiff's legal representatives.

Jurisdiction
Australia
Judgment Date
24 July 2019
Procedural Posture
Civil Costs Proceedings / On the Papers; Defendants Sought Variation of Costs Order to Obtain Indemnity Costs, Interest and Clarification
Outcome
Defendants' application granted; plaintiff ordered to pay indemnity costs and interest, with referrals and liberties ordered.
Legal Topics
['overriding Purpose Under S56' 'indemnity Costs' 'interest on Costs' 'vexatious Proceedings' 'misleading the Court' 'false Affidavits' 'responsibilities of Solicitors and Barristers' 'referral for Disciplinary Action' 'referral to Asic' 'referral to Office of Director of Public Prosecutions' 'freezing Orders']
['civil Procedure' 'costs'] ['overriding Purpose Under S56' 'indemnity Costs' 'interest on Costs' 'vexatious Proceedings' 'misleading the Court' 'false Affidavits' 'responsibilities of Solicitors and Barristers' 'referral for Disciplinary Action' 'referral to Asic' 'referral to Office of Director of Public Prosecutions' 'freezing Orders']

Case Brief

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Procedural Posture

Civil Costs Proceedings / On the Papers; Defendants Sought Variation of Costs Order to Obtain Indemnity Costs, Interest and Clarification

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs on an indemnity basis" "Whether interest should be ordered on the defendants' costs outstanding from time to time" 'Whether the conduct of the plaintiff, its officers and legal representatives warranted referrals to regulatory and prosecutorial bodies' 'Whether liberty should be granted to seek a gross sum costs order and any further freezing order']

Ratio Decidendi

The plaintiff failed to comply with the overriding purpose in s56 of the Civil Procedure Act, repeatedly pursued baseless, hopeless, vexatious and misconceived applications, failed to comply with court orders, misled the Court and third parties, gave or relied on untruthful evidence, and caused the defendants to incur gross and unnecessary costs. Those matters constituted sufficient unusual features and relevant delinquency justifying indemnity costs and interest, and also warranted directions for referrals concerning Angelo Ferella, Tiziana Ferella and the plaintiff's legal representatives.

Court Disposition

Defendants' application granted; plaintiff ordered to pay indemnity costs and interest, with referrals and liberties ordered.

Orders

  • ["The Registrar of the Court is directed to refer Angelo Ferella and Tiziana Ferella for investigation by the Australian Securities and Investments Commission, with the Court's recommendation that they be placed on the list of persons disqualified from having any involvement in the management of corporations." 'The...