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Significant Recent Costing Decisions regarding the threat of Personal Costs Orders

Significant Recent Costing Decisions regarding the threat of Personal Costs Orders

In De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 5) [2015] NSWDC 8 (10 February 2015), the cross defendants made an unsuccessful application for the solicitor and counsel of the cross claimant to indemnify them for the costs payable in the cross claim, relying on s 99 of the Civil Procedure Act 2005 and s 348 of the Legal Profession Act 2004. The Judgment provides a useful analysis and greater certainty to legal practitioners and costs consultants regarding the meaning of ìreasonable prospects of successî, ìreasonable grounds for believingî, ìprovable factî and a ìproperly alleged factî when considering the costs and risks of court proceedings.

In defamation proceedings, Time for Monkeys Enterprises Pty Ltd v Southern Cross Austereo Pty Ltd [2015] NSWDC 13 (19 February 2015), the defendants successfully applied for summary dismissal on the basis that the plaintiff represented by a director failed to file authorisations required by UCPR r 7.2. The failure arose as the plaintiff’s cheque in payment of the filing fee for the statement of claim was dishonoured, the pleadings were considered to be ‘hopelessly drafted’ and failed to distil imputations, the plaintiff made an application for default judgment but failed to serve the defendants and the plaintiff failed to appear on the summary judgment application. As a result, in relation to costs Gibson DCJ found that the plaintiff should pay the defendantsí costs and the plaintiff and a director of the plaintiff are jointly liable for the costs of the proceeding pursuant to s 98 Civil Procedure Act 2005 (NSW).