Pannetta v Parkview Constructions Pty Ltd [2014] NSWDC 341

Pannetta v Parkview Constructions Pty Ltd [2014] NSWDC 341

The default judgment was set aside because Parkview had an arguable defence that the plaintiff's costs disclosure was inadequate. The costs disclosure arguably dealt only with disputes and did not disclose estimated total costs for non-litigious legal work, and the disclosure for litigious matters left blank the estimates of costs recoverable if successful or payable if unsuccessful required by s 309(1)(f) of the Legal Profession Act 2004. Those arguable non-disclosures could preclude recovery absent assessment. The short delay in bringing the application was explained to some extent and no prejudice was alleged, so discretion favoured setting aside the default judgment. Because the...

Jurisdiction
Australia
Judgment Date
08 October 2014
Procedural Posture
Civil Proceedings for Recovery of Solicitor's Costs / Defendant's Motion to Set Aside Default Judgment
Outcome
Default judgment set aside; plaintiff's costs of the application ordered to be his costs in the cause; proceedings stood over for directions.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'solicitor Client Costs Disclosure' 'assessment of Legal Costs' 'interest on Unpaid Legal Costs' 'limitation Period' 'costs of Application']
['civil Procedure' 'legal Profession' 'costs'] ['default Judgment' 'setting Aside Default Judgment' 'solicitor Client Costs Disclosure' 'assessment of Legal Costs' 'interest on Unpaid Legal Costs' 'limitation Period' 'costs of Application']

Case Brief

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Procedural Posture

Civil Proceedings for Recovery of Solicitor's Costs / Defendant's Motion to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment obtained by the plaintiff should be set aside.' 'Whether the defendant had an arguable defence based on alleged failures to make costs disclosures required by the Legal Profession Act 2004.' 'Whether alleged non-disclosure meant legal costs were not payable and recovery proceedings could not be maintained until assessment.' 'Whether any delay or prejudice justified refusing to set aside the default judgment.' 'What costs order should be made on the application.']

Ratio Decidendi

The default judgment was set aside because Parkview had an arguable defence that the plaintiff's costs disclosure was inadequate. The costs disclosure arguably dealt only with disputes and did not disclose estimated total costs for non-litigious legal work, and the disclosure for litigious matters left blank the estimates of costs recoverable if successful or payable if unsuccessful required by s 309(1)(f) of the Legal Profession Act 2004. Those arguable non-disclosures could preclude recovery absent assessment. The short delay in bringing the application was explained to some extent and no prejudice was alleged, so discretion favoured setting aside the default judgment. Because the...

Court Disposition

Default judgment set aside; plaintiff's costs of the application ordered to be his costs in the cause; proceedings stood over for directions.

Orders

  • ['The default judgment is set aside.' "Plaintiff's costs of the application be his costs in the cause." 'Stand over for directions on Wednesday, 22 October 2014 at 10am before the list judge.']