Gokani v Visvalingam Pty Ltd

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.