Gokani v Visvalingam Pty Ltd

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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

Myers v Elman [1940] AC 282

Ridehalgh v Horsefield [1994] Ch 205

Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364

Category:Principal judgment
Parties: Anand Kantilal Gokani (Appellant)
Visvalingam Pty Ltd (Respondent)
Representation:

Counsel:
DA Lloyd SC / Y Truong (Appellant)
DS Weinberger (Respondent)

Solicitors:
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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Details
Case
[2023] NSWCA 80
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for personal costs orders against a solicitor, Mr Gokani, by the defendant, Visvalingam Pty Ltd. The dispute arose from the filing of a defence in the District Court which was alleged to be deficient, lacking an affirmative defence, and leading to costs being incurred by Visvalingam without reasonable cause. The court was also required to consider whether the plaintiff's claim, which sought repayment of a debt rather than damages, fell within the scope of certain provisions relating to costs orders.

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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