Kalloghlian v Mitry

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.