Tejani v Gerrard [1999] NSWSC 939

Tejani v Gerrard [1999] NSWSC 939

The solicitor brought and maintained the motion with undue haste and without proper searches or inquiries of his own trust account records, knew or ought to have known that only minimal funds were held and that the application was doomed to fail unless its bona fides could be established, and thereby caused costs to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 September 1999
Procedural Posture
Costs Application in Equity Division Proceedings / Determination of Costs After Dismissal of the Defendant's Notice of Motion Filed on 3 December 1998
Outcome
The plaintiffs succeeded on the costs application; John Joseph Gilles was ordered to pay the plaintiffs' costs personally on the indemnity basis.
Legal Topics
['indemnity Costs' 'personal Costs Order Against Solicitor' 'part 52 a Rule 43' 'costs Improperly Incurred' 'mareva Injunction' 'security for Costs']
['civil Procedure' 'costs' 'equity' 'professional Responsibility'] ['indemnity Costs' 'personal Costs Order Against Solicitor' 'part 52 a Rule 43' 'costs Improperly Incurred' 'mareva Injunction' 'security for Costs']

Source-derived case record

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Procedural Posture

Costs Application in Equity Division Proceedings / Determination of Costs After Dismissal of the Defendant's Notice of Motion Filed on 3 December 1998

Legal Issues

  1. 1 ["Whether the plaintiffs' costs of the defendant's dismissed notice of motion should be ordered on an indemnity basis." "Whether the defendant's solicitor, John Joseph Gilles, should personally indemnify the plaintiffs for costs under Part 52A rule 43 because the costs were improperly incurred or incurred without reasonable cause." "Whether the solicitor acted with sufficient candour and made proper searches and inquiries concerning the defendant's trust account before bringing and maintaining the motion."]

Ratio Decidendi

The solicitor brought and maintained the motion with undue haste and without proper searches or inquiries of his own trust account records, knew or ought to have known that only minimal funds were held and that the application was doomed to fail unless its bona fides could be established, and thereby caused costs to be incurred improperly and without reasonable cause. Because the defendant was unlikely to satisfy a costs order, a personal indemnity costs order against the solicitor was warranted.

Court Disposition

The plaintiffs succeeded on the costs application; John Joseph Gilles was ordered to pay the plaintiffs' costs personally on the indemnity basis.

Orders

  • ["John Joseph Gilles pay the plaintiff's costs personally on the indemnity basis of the defendant's motion filed on 3 December 1998."]