District Court
New South Wales
Medium Neutral Citation: Kalil v Eppinga [2020] NSWDC 407 Hearing dates: 5 September 2019, 11 October 2019, 25 November 2019, 4 December 2019, 11 December 2019, 20 March 2020, 23 April 2020, 29 April 2020, 30 April 2020, 1 May 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Civil Before: Wass SC DCJ Decision: (1) The following costs be paid in accordance with order 2 below:
(a) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file a proposed amended defence provided to the Plaintiffs' lawyers on 15 August 2019 including the costs of and occasioned by the hearing on 5 September 2019.
(b) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file the 2nd proposed amended defence provided to the Plaintiffs' lawyers on 20 September 2019.
(c) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file the 3rd proposed amended defence to the plaintiffs' lawyers on 26 September 2019.
(d) The Plaintiffs' costs of an occasioned by the Defendants' application for leave to file the 4th proposed amended defence including the costs of and occasioned by the hearings on 25 November 2019, 4 December 2019 and 11 December 2019.
(e) The Plaintiffs' costs of and occasioned by the Plaintiffs application for a personal costs order pursuant to Section 99 of the Civil Procedure Act 2005 including costs of and occasioned by the hearings on 20 March 2020, 23, 29, 30 April 2020 and 1 May 2020.
(2) The costs ordered in order (1) above are to be:
(a) Paid to the Plaintiffs by Leonardo Carlo Muriniti and Robert Duane Newell;
(b) Paid upon the indemnity basis; and
(c) Payable forthwith, with leave to the Plaintiffs to have the costs assessed forthwith, if not agreed.
Noted: Papers are referred to the Legal Services Commissioner to determine whether or not Mr Muriniti and/or Mr Newell have engaged in unsatisfactory professional conduct or professional misconduct.
Catchwords: COSTS - s 99 personal costs order application made by plaintiffs against defendants’ solicitors - indemnity costs - unsatisfactory professional conduct - professional misconduct - baseless allegations of collateral purpose - incompetence - breach of ethical obligations.
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Defamation Act 2005
Cases Cited: Ridehalgh v Horsefield [1994] EWCA Civ 40
De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 6) [2016] NSWDC 378
King v Muriniti [2018] NSWCA 98
Hockey v Fairfax Media Publications [2015] FCA 652
Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153
King v Muriniti [2018] NSWCA 98
Young v Hones (No 2) [2014] NSWCA 338
Young v King (No 3) [2012] NSWLEC 42
Young v King (No 4) [2012] NSWLEC 236
Young v King (No 6) [2015] NSWLEC 111
Young v King (No 8) [2015] NSWLEC 187
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- AGLC
- Kalil v Eppinga [2020] NSWDC 407
- Case
- [2020] NSWDC 407
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether the plaintiffs were entitled to a personal costs order against the defendants' solicitors for their conduct during the proceedings. This required the court to examine the conduct of the solicitors in detail and determine whether it warranted such a costs order. The court also had to consider the relevant legal principles and precedents that govern the making of such orders.
The court found that the solicitors' conduct was indeed unsatisfactory and amounted to professional misconduct. The baseless allegations of a collateral purpose, the demonstrated incompetence, and the breach of ethical obligations were significant factors in the court's decision. As a result, the court granted the plaintiffs' application for a personal costs order. The costs were to be paid on an indemnity basis and immediately, with the plaintiffs having the option to have the costs assessed if they were not agreed upon. Additionally, the matter was referred to the Legal Services Commissioner to investigate the solicitors' conduct further.
The court's final order mandated that the defendants' solicitors, Leonardo Carlo Muriniti and Robert Duane Newell, pay the plaintiffs' costs associated with several applications and hearings, including those related to the personal costs order application. The payment was to be made immediately, and the matter was referred for further investigation into the solicitors' conduct.
Orders
Orders of the court
(1) The following costs be paid in accordance with order 2 below:
(a) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file a proposed amended defence provided to the Plaintiffs' lawyers on 15 August 2019 including the costs of and occasioned by the hearing on 5 September 2019.
(b) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file the 2nd proposed amended defence provided to the Plaintiffs' lawyers on 20 September 2019.
(c) The Plaintiffs' costs of and occasioned by the Defendants' application for leave to file the 3rd proposed amended defence to the plaintiffs' lawyers on 26 September 2019.
(d) The Plaintiffs' costs of an occasioned by the Defendants' application for leave to file the 4th proposed amended defence including the costs of and occasioned by the hearings on 25 November 2019, 4 December 2019 and 11 December 2019.
(e) The Plaintiffs' costs of and occasioned by the Plaintiffs application for a personal costs order pursuant to Section 99 of the Civil Procedure Act 2005 including costs of and occasioned by the hearings on 20 March 2020, 23, 29, 30 April 2020 and 1 May 2020.
(2) The costs ordered in order (1) above are to be:
(a) Paid to the Plaintiffs by Leonardo Carlo Muriniti and Robert Duane Newell;
(b) Paid upon the indemnity basis; and
(c) Payable forthwith, with leave to the Plaintiffs to have the costs assessed forthwith, if not agreed.
Noted: Papers are referred to the Legal Services Commissioner to determine whether or not Mr Muriniti and/or Mr Newell have engaged in unsatisfactory professional conduct or professional misconduct.
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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