Crowe v Elbeaini [2013] NSWSC 1201

Crowe v Elbeaini [2013] NSWSC 1201

Ms Hart's misleading statements about sorting out orders with the court, unjustified objection to Mr Harvey's affidavit, late concession that the amounts were payable to Turner Freeman and TL, and continued opposition to the orders without proper foundation were unreasonable and caused wasted costs. TL Lawyers Pty Limited also caused wasted costs by failing to respond to Ms Hart, seeking to intervene without notice or a motion, and shifting its position on the orders sought. Because both Ms Hart and TL caused the defendant's unnecessary post-settlement costs, those costs should be borne equally on the ordinary basis, not on an indemnity basis.

Jurisdiction
Australia
Judgment Date
03 September 2013
Procedural Posture
Costs in Civil Proceedings / Determination of Reserved Costs After Settlement of the Proceedings
Outcome
Defendant's post-26 November 2012 costs to be borne equally by Ms Virginia Hart and TL Lawyers Pty Limited; indemnity costs refused.
Legal Topics
['wasted Costs' 'costs Against Legal Practitioner Personally' 'intervention' "equitable Lien for Solicitors' Costs" 'indemnity Costs']
['civil Procedure' 'costs'] ['wasted Costs' 'costs Against Legal Practitioner Personally' 'intervention' "equitable Lien for Solicitors' Costs" 'indemnity Costs']

Case Brief

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Procedural Posture

Costs in Civil Proceedings / Determination of Reserved Costs After Settlement of the Proceedings

Legal Issues

  1. 1 ['Whether Ms Virginia Hart should personally indemnify the defendant for costs incurred after settlement pursuant to s. 99(2)(c) of the Civil Procedure Act 2005.' 'Whether TL Lawyers Pty Limited should bear costs caused by its conduct as intervener.' "Whether the defendant's post-settlement costs should be payable on an indemnity basis." 'Whether the conduct of Ms Hart and TL Lawyers Pty Limited caused wasted costs incurred by the defendant.']

Ratio Decidendi

Ms Hart's misleading statements about sorting out orders with the court, unjustified objection to Mr Harvey's affidavit, late concession that the amounts were payable to Turner Freeman and TL, and continued opposition to the orders without proper foundation were unreasonable and caused wasted costs. TL Lawyers Pty Limited also caused wasted costs by failing to respond to Ms Hart, seeking to intervene without notice or a motion, and shifting its position on the orders sought. Because both Ms Hart and TL caused the defendant's unnecessary post-settlement costs, those costs should be borne equally on the ordinary basis, not on an indemnity basis.

Court Disposition

Defendant's post-26 November 2012 costs to be borne equally by Ms Virginia Hart and TL Lawyers Pty Limited; indemnity costs refused.

Orders

  • ["The defendant is to pay the plaintiff's costs of the proceedings up to and including 26 November 2012, as agreed or assessed." "Pursuant to s. 99(2)(c) of the Civil Procedure Act 2005, Ms Virginia Hart is to indemnify the defendant as to one half of the defendant's costs of the proceedings after 26 November 2012,...