Kalloghlian v Mitry - [2023] NSWCA 198

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kalloghlian v Mitry [2023] NSWCA 198
Hearing dates: 31 March 2023
Date of orders: 29 August 2023
Decision date: 29 August 2023
Before: Gleeson JA at [1]
Mitchelmore JA at [2]
Adamson JA at [67]
Decision:
(1) Appeal dismissed with costs.

Catchwords:
COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — where applicant was defendant/cross-claimant in substantive proceedings resolved by consent — where motion seeking personal costs order against solicitor dismissed — where case below put on basis that defence was woefully prepared — where case on appeal put on basis that lawyer omitted to advise applicant that claim should never have been defended — whether s 99 of the Civil Procedure Act 2005 (NSW) satisfied — whether correct test applied

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kalloghlian v Mitry Lawyers Pty Ltd (No 2) [2022] NSWSC 1071
Muriniti v Kalil [2022] NSWCA 109
Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180
NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838
Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Ridehalgh v Horsefield [1994] Ch 205
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Wentworth v Rogers [1999] NSWCA 403

Category: Principal judgment
Parties: Avedis Kalloghlian (Appellant)
Richard Louis Mitry (Respondent)
Representation:
Counsel:
M J Neil RFD KC / E L Bartley (Appellant)
M F Newton (Respondent)
Solicitors:
TPS&Co (Appellant)
Gilchrist Connell (Respondent)

File Number(s): 2022/265558
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 1071

Date of Decision:

10 August 2022

Before:

Peden J

File Number(s):

2019/75533

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Kalloghlian, appealed against the decision to dismiss his application in the Supreme Court for a personal costs order against the respondent solicitor, Richard Mitry, who had acted for him in proceedings in the District Court and the Supreme Court involving claims arising from renovations to Mr Kalloghlian’s family home. On 11 May 2017, the builder, Pure Construction Management Pty Ltd (PCM), commenced District Court proceedings against Mr Kalloghlian claiming unpaid progress payments. On 16 August 2017, a Defence was filed which referred to a set-off by reason of a cross-claim. On 25 May 2018, Mr Kalloghlian filed a cross-claim, alleging defective works. In March 2019, Mr Kalloghlian commenced proceedings in the Supreme Court against PCM, the architect, Villa & Villa Pty Ltd and the directors of both companies.

On 1 April 2019, orders were made in the Supreme Court by consent, pursuant to which the District Court proceedings were transferred to the Supreme Court, judgment for PCM was given…

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 Kalloghlian v Mitry

Details

AGLC: Kalloghlian v Mitry [2023] NSWCA 198
Case: [2023] NSWCA 198
Decision Date: 29 August 2023

CaseChat Overview and Summary

The appeal concerned a motion for a personal costs order against a solicitor, Mr. Mitry, who had acted for the applicant, Ms. Kalloghlian, in earlier proceedings. Ms. Kalloghlian had been the defendant and cross-claimant in those substantive proceedings, which were resolved by consent. The motion for the personal costs order against Mr. Mitry was dismissed by the primary judge. The appeal was heard by Gleeson, Mitchelmore, and Adamson JJA of the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in dismissing the motion for a personal costs order against Mr. Mitry. Specifically, the court was required to determine if the requirements of section 99 of the *Civil Procedure Act 2005* (NSW) were satisfied, which governs the making of costs orders against non-parties. This involved considering whether the correct legal test had been applied by the primary judge in assessing whether Mr. Mitry should be held personally liable for costs. The grounds for seeking the personal costs order below had been that Ms. Kalloghlian's defence was woefully prepared, while on appeal, the argument shifted to an alleged omission by Mr. Mitry to advise Ms. Kalloghlian that the claim should never have been defended.

The Court of Appeal found no error in the primary judge's decision. The court reasoned that the evidence did not support the assertion that Mr. Mitry had acted improperly or negligently in a manner that would warrant a personal costs order under section 99 of the *Civil Procedure Act 2005* (NSW). The court affirmed that the onus was on the party seeking the personal costs order to demonstrate that the solicitor's conduct warranted such an exceptional measure, and this onus had not been discharged. The appeal was therefore dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

(1) Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kalloghlian v Mitry [2023] NSWCA 198
Hearing dates:	31 March 2023
Date of orders:	29 August 2023
Decision date:	29 August 2023
Before:	Gleeson JA at [1] Mitchelmore JA at [2] Adamson JA at [67]
Decision:	(1) Appeal dismissed with costs.
Catchwords:	COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — where applicant was defendant/cross-claimant in substantive proceedings resolved by consent — where motion seeking personal costs order against solicitor dismissed — where case below put on basis that defence was woefully prepared — where case on appeal put on basis that lawyer omitted to advise applicant that claim should never have been defended — whether s 99 of the Civil Procedure Act 2005 (NSW) satisfied — whether correct test applied
Legislation Cited:	Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Kalloghlian v Mitry Lawyers Pty Ltd (No 2) [2022] NSWSC 1071 Muriniti v Kalil [2022] NSWCA 109 Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Ridehalgh v Horsefield [1994] Ch 205 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Wentworth v Rogers [1999] NSWCA 403
Category:	Principal judgment
Parties:	Avedis Kalloghlian (Appellant) Richard Louis Mitry (Respondent)
Representation:	Counsel: M J Neil RFD KC / E L Bartley (Appellant) M F Newton (Respondent) Solicitors: TPS&Co (Appellant) Gilchrist Connell (Respondent)
File Number(s):	2022/265558
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 1071 Date of Decision: 10 August 2022 Before: Peden J File Number(s): 2019/75533