COSTS — Indemnity basis — Whether claimant has been put to unnecessary expense of meeting unmeritorious claims — Where respondent’s claim based on forged documents — No doubt as to the falsity of the allegations advanced — respondent’s conduct amounts to a relevant delinquency or exceptional circumstances warranting an indemnity costs order.
COSTS — Civil Procedure Act 2005, s 98(4)(c) — Gross sum costs order — Whether appropriate in the circumstances — Where claimant of limited financial means and respondent’s ability to satisfy such an order in doubt
COSTS — whether evidence in support of costs claimed sufficient — Where no evidence that invoices presented have been paid — Liability for costs relevant question — Where unclear when cost agreement entered — section 174 of the Legal Profession Uniform Law 2014 (NSW) — Consequences of no disclosure should be no broader those contemplated by into section 178 of the Legal Profession Uniform Law 2014 (NSW).
[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
Foundas v Arambatzis (No 4) [2023] NSWSC 1648
Case
[2023] NSWSC 1648
Decision Date
CaseChat Overview and Summary
The matter involved Foundas, the appellant, and Arambatzis, the respondent, with the Court of Appeal deciding the appeal. The dispute was centred on a costs order made against Foundas in relation to a case where the respondent's claims were based on forged documents. The appeal challenged the primary judge's decision to award gross sum costs to the appellant.
The court had to consider whether the appellant was entitled to an indemnity costs order due to the respondent's conduct, which was deemed unmeritorious and vexatious, as it involved forged documents. The court also examined the appropriateness of a gross sum costs order under the circumstances, taking into account the appellant's limited financial means and the respondent's ability to satisfy such an order. Additionally, the court assessed the sufficiency of the evidence presented in support of the costs claimed, particularly regarding the payment of invoices and the timing of the cost agreement.
The Court of Appeal found that the respondent's conduct warranted an indemnity costs order as it amounted to a relevant delinquency or exceptional circumstances. The court also deemed the gross sum costs order appropriate given the appellant's financial constraints and the respondent's questionable ability to pay. The court concluded that the evidence provided was sufficient to support the costs claimed, noting that the consequences of non-disclosure should not be broader than those contemplated by the relevant legislation.
The court ordered that the respondent pay the appellant's costs on an indemnity basis, along with an additional sum to cover the costs of the appeal. The court also confirmed the appropriateness of the gross sum costs order and directed the parties to adhere to the relevant legal provisions concerning the disclosure of costs.