Wakaniuci v Adecco Australia Pty Limited; re Abboud [2008] NSWDC 174

Wakaniuci v Adecco Australia Pty Limited; re Abboud [2008] NSWDC 174

The application to set aside the ex parte costs orders was dismissed because Mr Abboud had clear notice of the motion against him, failed to file an appearance, prepare evidence, contact the defendant's solicitor or attend court, and could not rely on the later subpoena letter as an excuse. He was the author of his own misfortune, delayed about six months before seeking relief, and in any event his failure to respond adequately to the subpoena caused the adjournment and amounted to serious neglect and incompetence, or at least conduct attracting s 99(1)(b).

Jurisdiction
Australia
Judgment Date
25 July 2008
Procedural Posture
Application by Non Party Solicitor to Set Aside Personal Costs Orders / Application to Set Aside Ex Parte Costs Orders Made on 30 March 2007
Outcome
Application dismissed. Applicant to pay the defendant's costs.
Legal Topics
['non Party Costs Orders Against Solicitor' 'failure to Comply With Subpoena to Produce' 'wasted Costs' 'setting Aside Orders Made in Absence of a Party' "solicitor's Duty to the Court"]
['costs' 'civil Procedure' 'legal Profession'] ['non Party Costs Orders Against Solicitor' 'failure to Comply With Subpoena to Produce' 'wasted Costs' 'setting Aside Orders Made in Absence of a Party' "solicitor's Duty to the Court"]

Case Brief

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Procedural Posture

Application by Non Party Solicitor to Set Aside Personal Costs Orders / Application to Set Aside Ex Parte Costs Orders Made on 30 March 2007

Legal Issues

  1. 1 ['Whether the costs orders made against Mr Abboud in his absence should be set aside under r 36.16(2)(b).' "Whether Mr Abboud's failure to appear was explained by confusion caused by the defendant's solicitor's letter about a subpoena to give evidence." "Whether the adjournment costs were incurred by reason of Mr Abboud's serious neglect, incompetence or misconduct, or without reasonable cause in circumstances for which he was responsible."]

Ratio Decidendi

The application to set aside the ex parte costs orders was dismissed because Mr Abboud had clear notice of the motion against him, failed to file an appearance, prepare evidence, contact the defendant's solicitor or attend court, and could not rely on the later subpoena letter as an excuse. He was the author of his own misfortune, delayed about six months before seeking relief, and in any event his failure to respond adequately to the subpoena caused the adjournment and amounted to serious neglect and incompetence, or at least conduct attracting s 99(1)(b).

Court Disposition

Application dismissed. Applicant to pay the defendant's costs.

Orders

  • ['The application to set aside the orders of Judge Gibson is dismissed.' "Mr Abboud is to pay the defendant's costs of this application."]