Metsikas v Quirk (No 2) [2010] NSWSC 757

Metsikas v Quirk (No 2) [2010] NSWSC 757

Although the s 348 power was enlivened because Ms Metsikas lacked standing and there were no provable facts supporting a reasonable belief that the claim had reasonable prospects of success, the Court declined to exercise the discretion to order Mr Kalmath personally to pay costs. He had sought and acted on counsel's advice in an urgent lapsing notice context, did not institute proceedings recklessly or in disregard of advice, and virtually no steps were taken after the standing issue was raised. His conduct was not so delinquent as to warrant a personal costs order.

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Procedure Costs Costs Order Against Legal Practitioner / Ex Tempore Judgment on Defendants' Notice of Motion for a Personal Costs Order Under (nsw) Legal Profession Act 2004 S 348
Outcome
Motion dismissed; no order as to costs, with each party to bear its own costs of the motion.
Legal Topics
['personal Costs Order Against Legal Practitioner' 'legal Services Without Reasonable Prospects of Success' "bankrupt Plaintiff's Standing" 'tracing Remedy' 'constructive Trust' 'caveat']
['procedure' 'costs' 'legal Profession' 'bankruptcy' 'equity'] ['personal Costs Order Against Legal Practitioner' 'legal Services Without Reasonable Prospects of Success' "bankrupt Plaintiff's Standing" 'tracing Remedy' 'constructive Trust' 'caveat']

Case Brief

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Procedural Posture

Procedure Costs Costs Order Against Legal Practitioner / Ex Tempore Judgment on Defendants' Notice of Motion for a Personal Costs Order Under (nsw) Legal Profession Act 2004 S 348

Legal Issues

  1. 1 ['Whether Mr Kalmath provided legal services to Ms Metsikas without reasonable prospects of success within the meaning of (NSW) Legal Profession Act 2004 s 348 and s 349.' 'Whether the discretion to make a personal costs order against Mr Kalmath should be exercised.' 'Whether Ms Metsikas had standing to institute proceedings after bankruptcy in respect of a cause of action that had vested in her trustee in bankruptcy.']

Ratio Decidendi

Although the s 348 power was enlivened because Ms Metsikas lacked standing and there were no provable facts supporting a reasonable belief that the claim had reasonable prospects of success, the Court declined to exercise the discretion to order Mr Kalmath personally to pay costs. He had sought and acted on counsel's advice in an urgent lapsing notice context, did not institute proceedings recklessly or in disregard of advice, and virtually no steps were taken after the standing issue was raised. His conduct was not so delinquent as to warrant a personal costs order.

Court Disposition

Motion dismissed; no order as to costs, with each party to bear its own costs of the motion.

Orders

  • ['The motion is dismissed.' 'There will be no order as to costs, to the intent that each party bear its own costs of the motion.']