Eurobodalla Shire Council v Wells

The New South Wales Court of Appeal considered an application for costs against legal practitioners in *Eurobodalla Shire Council v Wells*. The dispute arose from an application for leave to appeal, where the Court was asked to determine whether to make a costs order against the legal representatives of one of the parties.

The central legal issue before the Court was the application of section 198M of the *Legal Profession Act 1987* (NSW), which allows for costs orders against legal practitioners personally. Specifically, the Court had to determine whether the appeal had been brought without reasonable prospects of success, a prerequisite for making such an order under the Act. The Court also considered the appropriate scope of such an order, including the extent of the indemnity to be awarded.

In its reasoning, the Court applied the principles established in *Lemoto v Able Technical Pty Ltd* [2005] NSWCA 153. This involved an assessment of whether the legal practitioners had acted unreasonably in pursuing the appeal, given its prospects. The Court concluded that the appeal lacked reasonable prospects of success and that an order under section 198M was warranted.

The Court ordered that the legal representatives of the third respondent (the opponent) indemnify the claimant against the whole of the costs payable by the claimant to its legal representatives in respect of the application for leave to appeal. Furthermore, the first and second respondents were ordered to pay the claimant's costs associated with the claimant's subsequent notice of motion.