Burrows v Macpherson and Kelley Lawyers (Sydney) Pty Ltd & Anor [2024] NSWDC 68

Procedural Posture

Civil Proceedings; Application for Summary Dismissal / Defendants' Application for Summary Dismissal of Proceedings Seeking to Set Aside a Costs Order

Legal Issues

1. 1 ["Whether the plaintiff's proceedings to set aside the Costs Order on the basis of fraud, illegality, irregularity or bad faith should be summarily dismissed under r 13.4 of the Uniform Civil Procedure Rules." "Whether, even assuming the alleged misrepresentations were made and were fraudulent, the plaintiff's claim was hopeless because M & K Sydney and M & K Group were separate incorporated legal practices and recoverable costs were not precluded by Bell Lawyers v Pentelow." "Whether the existence of Court of Appeal authority on recovery of costs by incorporated legal practices made the plaintiff's case bound to fail despite submissions that the law was in a state of flux."]

Ratio Decidendi

Even putting the plaintiff's case at its highest and assuming the alleged misrepresentations were made and were fraudulent, the proceedings had no prospects of success because binding High Court and New South Wales Court of Appeal authority established that Bell Lawyers v Pentelow did not preclude recovery of the relevant costs where separate incorporated legal practices, or employed solicitors of such entities, were involved. The plaintiff's case was therefore doomed to fail and it was appropriate to summarily dismiss the proceedings under r 13.4 of the Uniform Civil Procedure Rules.

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendants' costs.

Orders

• ['That the proceedings be dismissed.' "The plaintiff pay the defendants' costs."]