King v Muriniti

Case [2018] NSWCA 98


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: King v Muriniti [2018] NSWCA 98
Hearing dates: 23 March 2018
Decision date: 10 May 2018
Before: Basten JA at [1];
Gleeson JA at [48];
Emmett AJA at [53]
Decision:

(1)   Order that Leonardo Carlo Muriniti indemnify Brendan King and Kristina King against the costs payable by them on account of legal fees and disbursements in relation to the proceedings brought against them in this Court by Margo Young, limited to the amount payable by Ms Young pursuant to the costs orders made by the Court in dismissing her appeals in matters No 2015/229797, 2015/229805, 2016/76351 and 2016/76373.

 (2)   Order that the respondent (Mr Muriniti) pay the costs of the motions filed on 31 October 2016 by the applicants on the motions (Mr and Mrs King) in each proceeding.
Catchwords:

COSTS — party/party — orders against non-parties — personal costs orders against lawyers — whether lawyer’s conduct constitutes serious incompetence or neglect — whether personal costs order should be made

 

COSTS — party/party — orders against non-parties — personal costs orders against lawyers — scope of jurisdiction — whether jurisdiction includes indemnity with respect to contractual liabilities to lawyers and third parties — Civil Procedure Act 2005 (NSW), s 99(2)(c)

EVIDENCE — judgments and convictions — admissibility of decisions or findings of fact — whether court can rely on findings made in principal proceedings when exercising jurisdiction to order personal costs against lawyer — Evidence Act 1995 (NSW), s 91
Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3, 56, 57, 98, 99
Criminal Procedure Act 1986 (NSW), Ch 6
Evidence Act 2005 (NSW), ss 9, 11, 91, 92, 93, 178, 190; Pt 3.5
Vexatious Proceedings Act 2008 (NSW), s 8

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16
Cases Cited: Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823
Attorney General of New South Wales v Martin [2015] NSWSC 1372
Ireland v Retallack (No 2) [2011] NSWSC 1096
Kendirjian v Ayoub [2008] NSWCA 194
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Mercantile Bank of India Ltd v Central Bank of India Ltd [1938] AC 287
Myers v Elman [1940] AC 282
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4
Prothonotary v Comeskey [2018] NSWCA 18
Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Young v King (No 6) [2015] NSWLEC 111
Young v King [2004] LEC 93
Young v King [2016] NSWCA 282
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276
Category:Costs
Parties:

Matter Nos. 2015/229797, 2015/229805, 2016/76373 and 2016/76351:

  Brendan King (First Applicant on Notice of Motion)
Kristina King (Second Applicant on Notice of Motion)
Leonardo Carlo Muriniti (Respondent to Notice of Motion)
Representation:

Counsel in Matter Nos. 2015/229797, 2015/229805, 2016/76373 and 2016/76351:

 

Mr M Wright (First…

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AGLC
King v Muriniti [2018] NSWCA 98
Case
[2018] NSWCA 98
Decision Date

CaseChat Overview and Summary

In *King v Muriniti*, the applicants, Brendan King and Kristina King, sought orders for personal costs against the respondent, Leonardo Carlo Muriniti, a legal practitioner. The dispute arose from Mr Muriniti's conduct in proceedings brought against the Kings by Margo Young, where the Kings were ultimately successful. The Kings sought to recover costs incurred due to Mr Muriniti's alleged serious incompetence or neglect.

The Court of Appeal of New South Wales was required to determine whether Mr Muriniti's conduct warranted a personal costs order against him. Specifically, the court considered the scope of its jurisdiction to make such orders, including whether it extended to indemnity for contractual liabilities to lawyers and third parties, pursuant to section 99(2)(c) of the *Civil Procedure Act 2005* (NSW). A further issue was the admissibility of findings made in the principal proceedings when exercising jurisdiction to order personal costs against a lawyer, under section 91 of the *Evidence Act 1995* (NSW).

The court reasoned that the jurisdiction to make personal costs orders against legal practitioners is a broad one, intended to address conduct that falls short of the required standard. It held that findings of fact made in the principal proceedings were admissible and could be relied upon when considering a personal costs order. The court found that Mr Muriniti's conduct did constitute serious incompetence and neglect, justifying the imposition of a personal costs order.

The court ordered that Mr Muriniti indemnify the Kings against costs payable by them in relation to the proceedings brought by Ms Young, limited to the amount Ms Young was liable to pay pursuant to the costs orders made by the Court in dismissing her appeals. Additionally, Mr Muriniti was ordered to pay the costs of the motions filed by the Kings on 31 October 2016 in each proceeding.

Orders

Orders of the court

(1) Order that Leonardo Carlo Muriniti indemnify Brendan King and Kristina King against the costs payable by them on account of legal fees and disbursements in relation to the proceedings brought against them in this Court by Margo Young, limited to the amount payable by Ms Young pursuant to the costs orders made by the Court in dismissing her appeals in matters No 2015/229797, 2015/229805, 2016/76351 and 2016/76373.

(2) Order that the respondent (Mr Muriniti) pay the costs of the motions filed on 31 October 2016 by the applicants on the motions (Mr and Mrs King) in each proceeding.

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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