Dimarti v AB Law Group Pty Ltd - [2023] NSWSC 1595

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dimarti v AB Law Group Pty Ltd [2023] NSWSC 1595
Hearing dates: 15 December 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
See paragraph 43

Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — where the plaintiffs seek to set aside a costs assessment in favour of the defendant — where the plaintiffs allege that the costs assessment was supported by reliance on fraudulent documents — where the summons was filed out of time and requires substantial amendments — whether the summons should be dismissed as frivolous or vexatious.

Legislation Cited:
Bankruptcy Act 1966 (Cth), s 41(6A)
Crimes Act 1900 (NSW), s 253(b)(ii)
Legal Profession Uniform Law Application Act 2014 (NSW) ss 89, 91
Uniform Civil Procedure Rules 2005 (NSW), rr 1.18, 50.2, 50.3,
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
CSR Investments Pty Limited v Alcan Northern Territory Alumina Pty Limited [2003] NSWSC 1137
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, (1964) HCA 69
AB Law Group Pty Ltd v Dimarti (Supreme Court (NSW), Peden J, 10 July 2023, unrep)
Naro Investments Pty Ltd & Ors v Benjamin & Khoury Pty Ltd [2021] NSWSC 262
Naro Investments Pty Ltd & Ors v Benjamin & Khoury Pty Ltd (No 2) [2021] NSWSC 1198
XY v The Council of the Law Society of New South Wales [2021] NSWSC 1263

Category: Procedural rulings
Parties: Margherita Dimarti (First Plaintiff)
Rocco Dimarti (Second Plaintiff)
Natalie Dimarti (Third Plaintiff)
AB Pty Ltd (Defendant)
Representation:
Counsel:
Mr J Pope (Plaintiff’s Solicitor)
Mr C Dobbs (Defendant)
Solicitors:
Pope & Spinks Solicitors (Plaintiffs)
Twyford Law (Defendant)

File Number(s): 2023/293321
Publication restriction: Nil

JUDGMENT

The primary proceedings were commenced by the filing of a summons on 14 September 2023.
The summons is supported by an affidavit of Mr Rocco Dimarti affirmed on 14 September 2023 and an affidavit of Ms Margherita Dimarti affirmed on 14 September 2023. These two deponents are two of the plaintiffs in the proceedings.
The defendant is a law firm holding out, by its title, as being part of a “group”. Notwithstanding its title the firm is not part of any group and does not have any principal or employee bearing the name of the group. The firm’s principal solicitor, perhaps only solicitor, is Ms XY. Her name has been suppressed to achieve conformity with orders in other courts, in particular in relation to criminal proceedings. The name of the defendant law firm has also been anonymised to AB in order to preserve the suppression of Ms XY’s name.
Ms XY’s practising certificate was suspended by the Council of the Law Society of New South Wales on 15 July 2021. It remains suspended, but the suspension is being contested. Ms XY denies any wrongdoing.
On 19 October 2023 the defendant filed a notice of motion seeking a declaration that the summons…

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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Details

Case: [2023] NSWSC 1595
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case of Dimarti v AB Law Group Pty Ltd involved the plaintiffs seeking to set aside a costs assessment in favour of the defendant. The plaintiffs alleged that the costs assessment was supported by reliance on fraudulent documents. The matter was brought before the court as a summons, which was filed out of time and required substantial amendments. The court had to determine whether the summons should be dismissed as frivolous or vexatious.

The legal issues before the court included whether the summons was frivolous or vexatious, and whether it was filed out of time. The court had to consider the plaintiffs' allegations of fraud and whether these were sufficient to warrant the setting aside of the costs assessment. The court also had to consider the procedural issue of whether the summons was filed out of time and required substantial amendments.

The court found that the plaintiffs' allegations of fraud were not substantiated and that the summons was filed out of time and required substantial amendments. The court held that the summons was frivolous or vexatious and dismissed the proceedings. The court found that the plaintiffs had not provided any evidence to support their allegations of fraud and that the summons was an abuse of the court's process. The court also found that the plaintiffs had not shown any reasonable prospects of success in setting aside the costs assessment.

The court dismissed the summons as frivolous or vexatious and ordered the plaintiffs to pay the defendant's costs of the proceedings. The court found that the plaintiffs had acted unreasonably in pursuing the summons and that the defendant was entitled to be compensated for the costs incurred as a result of the plaintiffs' actions.

Orders