Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Gokani v Visvalingam Pty Ltd [2023] NSWCA 80 Hearing dates: 3 April 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Before: Leeming JA at [1];
Basten AJA at [2];
Griffiths AJA at [90]Decision: (1) Allow the appeal and set aside the orders made in the District Court on 26 July 2022.
(2) In place of those orders, order that:
(a) Visvalingam’s amended notice of motion filed on 1 March 2022 be dismissed;
(b) Visvalingam pay Mr Gokani’s costs of the motion in the District Court.
(3) Order that Visvalingam pay Mr Gokani’s costs of the appeal.
Catchwords: COSTS – personal costs order against solicitor for defendant – filing of defence – statement of claim deficient – no affirmative defence pleaded – whether costs incurred “without reasonable cause” – Civil Procedure Act 2005 (NSW), s 99
COSTS – costs order against solicitor – whether plaintiff’s claim was for “damages” – statement of claim sought repayment of debt – Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2, cl 5
EVIDENCE – appeal – further evidence – evidence available during trial – waiver of privilege – liquidator appointed to solicitor’s client – privilege waived by liquidator – solicitor’s file not produced – no reliance on proposed tender in course of submissions
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, ss 60, 99
District Court Act 1973 (NSW), s 127
Legal Profession Act 2004 (NSW), ss 345, 348(1)
Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2, cl 5
Limitation Act 1969 (NSW), ss 50C, 50D
Supreme Court Act 1970 (NSW), ss 75A, 101(2)
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254
King v Muriniti (2018) 97 NSWLR 991; [2018] NSWCA 98
Medcalf v Mardell [2003] 1 AC 120; [2002] UKHL 27
Murgolo v AAI Ltd t/as AAMI (2019) 101 NSWLR 376; [2019] NSWCA 295
Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180
Ridehalgh v Horsefield [1994] Ch 205
Category: Principal judgment Parties: Anand Kantilal Gokani (Appellant)
Visvalingam Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
DA Lloyd SC / Y Truong (Appellant)
DS Weinberger (Respondent)
Gilchrist Connell (Appellant)
Chedid Storey Legal (Respondent)
File Number(s): 2022/00238689 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Citation:
Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) [2022] NSWDC 294
- Date of Decision:
- 26 July 2022
- Before:
- P Taylor SC DCJ
- File Number(s):
- 2018/47055
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent Visvalingam Pty Ltd sued…
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- Case
- [2023] NSWCA 80
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the costs incurred by Visvalingam were properly attributable to Mr Gokani's conduct and whether they were incurred "without reasonable cause" under section 99 of the *Civil Procedure Act 2005* (NSW). Additionally, the court had to determine if the plaintiff's claim for debt repayment constituted a claim for "damages" for the purposes of the *Legal Profession Uniform Law Application Act 2014* (NSW). The admissibility of further evidence on appeal, specifically relating to a liquidator's waiver of privilege over the solicitor's file, was also a point of contention.
The Court of Appeal allowed the appeal, setting aside the District Court's orders. The court reasoned that the plaintiff's claim was for a debt, not damages, and therefore the relevant provision of the *Legal Profession Uniform Law Application Act 2014* (NSW) did not apply. Furthermore, the court found that the costs incurred by Visvalingam were not shown to be without reasonable cause, as the deficiency in the defence did not necessarily equate to a lack of reasonable cause for the solicitor's actions. The court also noted that the proposed further evidence on appeal was not sufficiently compelling to warrant admission.
Consequently, the Court of Appeal ordered that Visvalingam's amended notice of motion filed in the District Court be dismissed, and that Visvalingam pay Mr Gokani's costs of that motion. The court also ordered that Visvalingam pay Mr Gokani's costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the orders made in the District Court on 26 July 2022.
(2) In place of those orders, order that:
(a) Visvalingam’s amended notice of motion filed on 1 March 2022 be dismissed;
(b) Visvalingam pay Mr Gokani’s costs of the motion in the District Court.
(3) Order that Visvalingam pay Mr Gokani’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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