Gilles v La Rosa - [2018] NSWSC 920

Supreme Court

New South Wales

Medium Neutral Citation: Gilles v La Rosa [2018] NSWSC 920
Hearing dates: 17 May 2018
Date of orders: 17 May 2018
Decision date: 21 June 2018
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Order that the summons be dismissed.
2. Order the plaintiffs to lodge in registrable form a Notice of Withdrawal of Caveat No AJ547705.
3. Order that the cross claim otherwise be dismissed.
4. Order the plaintiff to pay defendant’s costs of proceedings fixed in sum of $30,000.
5. Vacate hearing date of 18 May 2018.

Catchwords:
PROCEDURE – judgments and orders – no utility of proceedings due to operation of set-off
COSTS – assessment of costs – proceedings misconceived – proceedings did not plead final relief – parties did not bring set-off to attention of court – fixed costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Regulation 2005 (NSW)
Cases Cited: Malouf v Constantinou [2017] NSWSC 923
MJ Leonard Pty Ltd v Bristrol Custodians Ltd [2013] NSWSC 1734
Taleb v National Australia Bank Limited (2011) 82 NSWLR 489
Miller v Minister for Mines [1963] AC 484
Category: Costs
Parties: Joseph John Gilles (First Plaintiff and First Cross Defendant)
Gregory Eliades (Second Plaintiff and Second Cross Defendant)
Rosa La Rosa as executor of the Estate of the Late Giovanni La Rosa (First Defendant and First Cross Claimant)
Rosa La Rosa (Second Defendant and Second Cross Claimant)
Representation:
Counsel
L T Fermanis (Plaintiffs/Cross Defendants)
M Castle (Defendants/Cross Claimants)
Solicitors
Giles Payne & Co (Plaintiffs/Cross Defendants)
S Moran & Co Solicitors (Defendants/Cross Claimants)

File Number(s): 2015/00366603

Judgment

These proceedings concern two costs agreements between Ms Rosa La Rosa and the late Mr Giovanni La Rosa (the Clients), on the one part, and the law firm Giles, Payne & Co (the Firm), on the other. Giovanni La Rosa died on 5 July 2016 and probate of his will was granted to Rosa La Rosa on 3 May 2017.
The first of the costs agreements was dated 25 February 2014 (the First Agreement). The Clients had instructed the Firm in relation to a conveyancing matter that involved reorganising loans made to secure advances to their sons, Mr Salvatore La Rosa (Salvatore) and Mr Francesco La Rosa (Francesco). One such loan had become the subject of family law proceedings between Salvatore and his former wife, Ms Eva Garcia, in the Federal Circuit Court (the Family Law Proceedings). In June 2014, in response to an application by Ms Garcia to join the Clients to the Family Law Proceedings, the Clients provided the Firm with further instructions to oppose the joinder. Accordingly, a second costs agreement was signed on 25 July 2014 (the Second Agreement).
Each of the First Agreement and the Second Agreement annexed a document containing a term that specified that the Firm had the right of security for costs and disbursements for work performed,…

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.

Continue reading Gilles v La Rosa

Details

AGLC: Gilles v La Rosa [2018] NSWSC 920
Case: [2018] NSWSC 920
Decision Date: 21 June 2018

CaseChat Overview and Summary

The case of Gilles v La Rosa involved a dispute between the parties, Gilles and La Rosa, which was brought before the court. The dispute centred around the enforcement of a set-off, a common law principle that allows debts to be offset against each other, thereby reducing the overall amount owed. The proceedings did not achieve any utility due to the operation of the set-off, which rendered the proceedings futile. The court was required to determine the legal issues surrounding the set-off and its application to the proceedings.

The court examined whether the set-off principle could be applied in the context of the proceedings, and if so, whether it was properly pleaded. The court found that the set-off was not adequately brought to the attention of the court during the proceedings. Consequently, the parties did not plead the final relief they sought. The court also needed to decide on the appropriate costs order to be made in light of the proceedings being misconceived.

The court concluded that the proceedings were misconceived because the parties did not plead the set-off, and thus, the court could not provide the final relief sought. The court held that the set-off rendered the proceedings futile, as there was no utility in proceeding with the case. Given the circumstances, the court made a fixed costs order. This order was made to ensure that the party who had successfully argued the set-off did not bear the burden of the other party's failure to plead the set-off. The court's decision was based on the principle that parties should bear their own costs when proceedings are misconceived and do not achieve any utility.

Orders