De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 6)

In the case of De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 6), the applicants sought to recover part of their costs from their former legal representatives, Robert Newell and Leonardo Muriniti, following a trial in the Federal Circuit Court. The applicants argued that their former legal representatives had engaged in serious misconduct, serious neglect or serious incompetence, which led to increased costs during the proceedings. The applicants sought indemnity for a portion of their costs and argued that the conduct of Newell and Muriniti warranted a costs order against them.

The primary legal issues for the court to decide were whether Newell and Muriniti had engaged in conduct warranting a costs order, and if so, to what extent. The court examined whether the evidence provided by the applicants was sufficient to rebut the presumption that legal services were provided without reasonable prospects of success. The court also considered the extent to which Newell and Muriniti's conduct had led to increased costs, and whether it was appropriate to apportion the total costs of the proceedings between the parties.

The court found that Newell and Muriniti had indeed engaged in serious misconduct, serious neglect or serious incompetence, which had led to increased costs during the proceedings. The court identified multiple instances of misconduct, including inconsistencies between pleadings and particulars, between pleadings and evidence, the production of voluminous irrelevant evidence, false evidence, inappropriate instructions to experts, unlawful recording of telephone conferences, multiple witnesses in joint conferences, failure to produce documents, and inappropriate allegations of impropriety. The court held that it was appropriate to apportion the total costs of the proceedings between the parties and ordered Newell and Muriniti to indemnify the applicants against 50% of their costs payable in the proceedings up to the conclusion of the trial on 11 October 2012. The court reserved the questions of costs of the application and interest for further submissions on a date to be fixed.