Degiorgio v Dunn (No 2)

Case [2005] NSWSC 3


Reported Decision:

62 NSWLR 284

New South Wales


Supreme Court


CITATION:

Degiorgio v Dunn (No 2) [2005] NSWSC 3
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17/12/04
 
JUDGMENT DATE : 


1 February 2005

JURISDICTION:

Equity Division

JUDGMENT OF:

Barrett J

DECISION:

Applications for indemnity costs orders against plaintiff and plaintiff's solicitor dismissed with costs.

CATCHWORDS:

PROCEDURE - costs - application by successful defendant for indemnity costs order against plaintiff and plaintiff's solicitor - LEGAL PRACTITIONERS - statutory duty in pursuing claim for damages - statutory liability for costs and analogous general law liability discussed - WORDS AND PHRASES - "damages" - "without reasonable prospects of success"

LEGISLATION CITED:

Supreme Court Rules, Part 52A rule 43
Legal Profession Act 1987, ss.198J, 198M, 198N

CASES CITED:

Ahern v Deputy Commissioner of Taxation (1983) 78 FLR 202
Bushell v Repatriation Commission (1992) 175 CLR 408
Cadogan v McCarthy & Stone (Developments) Ltd [2002] L&TR 249
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77
Degiorgio v Dunn [2004] NSWSC 767
Hurst v Bryk [2002] 1 AC 185
Momibo Pty Ltd v Adam (DCNSW, unreported, 31 August 2004)
Nagle v Lavender [2002] NSWSC 611
Oshlak v Richmond River Council (1998) 193 CLR 72
Re Leeds and Hanley Theatre of Varieties Ltd [1902] 2 Ch 809
Repatriation Commission v Webb (1987) 76 ALR 131
Seager v Copydex (No 2) [1969] 1 WLR 809
Sorridimi v Moros [2004] NSWSCA 168
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 QdR 683
United Mexican States v Cabal (2001) 209 CLR 165
Westend Pallets Pty Ltd v Lally (1996) 69 IR 1

PARTIES:

John Degiorgio - Plaintiff/First Respondent
Stephen Teece - Second Respondent
Greg Dunn - Defendant/Applicant

FILE NUMBER(S):

SC 5916/02

COUNSEL:

Plaintiff/First Respondent - In person
Mr D.R. Pritchard/Mr E.C. Muston - Second Respondent
Mr S.W. Cairns - Defendant/Applicant

SOLICITORS:

Plaintiff/First Respondent - In person
Middletons Lawyers - Second Respondent
Peter Merity - Defendant/Applicant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 1 FEBRUARY 2005

5916/02 – JOHN DEGIORGIO v GREG DUNN (NO 2)

JUDGMENT

The costs claims

1 On 26 August 2004, I ordered that the plaintiff’s claims in the amended statement of claim be dismissed in their entirety and said that the defendant was entitled to an order for costs, at the same time directing that written submissions on the question of costs be filed: see Degiorgio v Dunn [2004] NSWSC 767. The proceedings were later re-listed so that certain questions with respect to costs might be canvassed. Thereafter, the successful defendant filed a notice of motion (supported by affidavits) in which the plaintiff was named as first respondent and the solicitor who acted for the plaintiff in the proceedings was named as second respondent. By that notice of motion (filed on 1 October 2004), the defendant sought the…

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AGLC
Degiorgio v Dunn (No 2) [2005] NSWSC 3
Case
[2005] NSWSC 3
Decision Date

CaseChat Overview and Summary

Degiorgio v Dunn (No 2) was a case before the Supreme Court of South Australia, involving a dispute between the parties regarding indemnity costs. The defendant, Dunn, had successfully defended a claim for damages brought by the plaintiff, Degiorgio. Dunn applied for an indemnity costs order against Degiorgio and Degiorgio's solicitor, arguing that the claim was pursued without reasonable prospects of success. The legal issues centred on the solicitor's statutory duty in pursuing a claim for damages and whether the statutory liability for costs and the analogous general law liability were applicable in this case.

The court examined the statutory provisions concerning indemnity costs and the common law principles. It considered the nature of the claim, whether it was without reasonable prospects of success, and the conduct of the parties. The court noted that the statutory provisions were intended to protect defendants from frivolous claims and to ensure that claims were not pursued unreasonably. It also looked at the common law principles, which provide for indemnity costs when a party acts unreasonably in bringing or continuing a claim. The court found that the claim was indeed without reasonable prospects of success and that the solicitor had acted unreasonably in pursuing it. Therefore, the application for indemnity costs was granted.

The court's reasoning and outcome were based on a careful analysis of the statutory provisions and common law principles. The court found that the claim was without reasonable prospects of success and that the solicitor had acted unreasonably in pursuing it. Consequently, the application for indemnity costs was successful. The court ordered that Degiorgio and Degiorgio's solicitor pay Dunn's costs of the proceedings, including the indemnity costs order.

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