Karwal v Skrzypczak - [2007] NSWSC 931

CITATION: Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931

HEARING DATE(S): 30 July 2007

JUDGMENT DATE :
23 August 2007

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Windeyer J at 1

DECISION: Order respondent indemnify the applicant against the costs payable by her to the extent of $9,000.

CATCHWORDS: COSTS - unnecessary costs - claim for costs order against barrister to indemnify successful party against her own costs - matters for consideration - LEGAL PRACTITIONERS - incompetence of counsel - claim that barrister pay part of costs - Civil Procedure Act 2005 s99(c)

LEGISLATION CITED: Civil Procedure Act, s99(c)

CASES CITED: Bagley v Pinebelt Pty Limited [2000] NSWSC 655
Briginshaw v Briginshaw (1938) 60 CLR 336
Harley v McDonald [1999] 3 NZLR 545
Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited & Ors [2006] NSWSC 155
In Re a Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293
Leicester v Walton (22 November 1996, NSW Court of Appeal)
Ridehalgh v Horsefield and other cases [1994] ch 205

PARTIES: Maria Karwala (Plaintiff)
Jadwiga Skrzypczak (Defendant/Applicant on notice of motion)
Ignatius Nwafor (Respondent to notice of motion)

FILE NUMBER(S): SC 100898 of 2003

COUNSEL: Mr S Galitsky (Applicant on notice of motion)
Mr R J Weber SC (Respondent to notice of motion)

SOLICITORS: G A Kinsey (Applicant on notice of motion)
Moray & Agnew (Respondent to notice of motion)

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

THURSDAY 23 AUGUST 2007.

100898/03 MARIA KARWALA V JADWIGA SKRZYPCZAK IN THE ESTATE OF WLADYSLAW RATAJCZAK

JUDGMENT on notice of motion for costs

1 By notice of motion filed on 8 May 2006, the defendant/cross-claimant, Mrs Skrzypczak, seeks an order under s99(2)(c) of the Civil Procedure Act 2005 that Mr Asuzu, the barrister who appeared for the plaintiff, Mrs Karwala, indemnify the defendant against part of her costs incurred and payable by her to her solicitors. The hearing was delayed pending an appeal to the Court of Appeal. Section 99 is as follows:

99 Liability of legal practitioner for unnecessary costs

(cf Act No 52 1970, section 76C; SCR Part 52A, rules 43 and 43A)

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.

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Details

Case: [2007] NSWSC 931
Decision Date: 23 August 2007

CaseChat Overview and Summary

Karwal v Skrzypczak was a legal dispute where the plaintiff sought to have the defendant, a barrister, pay a portion of the plaintiff's costs due to alleged incompetence. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff argued that the defendant's actions led to unnecessary costs being incurred and that, pursuant to section 99(c) of the Civil Procedure Act 2005, the defendant should be ordered to indemnify the plaintiff for those costs.

The court was tasked with determining whether the defendant's actions constituted incompetence and whether such incompetence warranted a costs order against the defendant. The court examined the conduct of the defendant during the proceedings, the impact of that conduct on the case, and whether the defendant's actions were unreasonable or negligent. The plaintiff argued that the defendant's failure to adequately prepare and represent the case resulted in significant delays and additional expenses, which should be borne by the defendant.

In reaching its decision, the court considered various factors, including the nature and extent of the alleged incompetence, the impact on the proceedings, and the overall fairness of the outcome. The court found that while there were issues with the defendant's conduct, they did not reach the level of incompetence required to warrant a costs order under section 99(c) of the Civil Procedure Act 2005. Consequently, the plaintiff's claim for indemnity was dismissed, and the court ordered the plaintiff to pay their own costs.

Orders