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"
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.