Mendonca v Dooley and Associates Solicitors Pty Ltd - [2016] NSWCA 144

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144
Hearing dates: 7 June 2016
Decision date: 27 June 2016
Before: Simpson JA, Sackville AJA
Decision:
1. The application for leave to appeal be dismissed.
2. The Applicant pay the Respondents’ costs of the application.

Catchwords: COSTS – unsuccessful party to litigation seeks costs orders against his legal representatives – whether primary judge erred in concluding that there was no basis for orders under Legal Profession Act 2004 (NSW) s 348 or Civil Procedure Act 2005 (NSW) s 99 – leave to appeal refused
Legislation Cited:
Fair Work Act 2009 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(4)(ab)
Workplace Relations Act 1996 (Cth), ss 170CP, 170CS

Civil Procedure Act 2005 (NSW), s 99
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), ss 5, 8(1)(b)(ii)
Legal Profession Act 2004 (NSW), ss 345, 348, 349
Supreme Court Act 1970 (NSW), s 101(2)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 51.12(3)(a)
Cases Cited: Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; 179 ALR 406
Chan v Johnson [2014] NSWSC 1439
Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Fencott v Muller [1983] HCA 12; 152 CLR 570
Goldman Sachs JB Were Services Pty Ltd v Nikoich [2007] FCAFC 120; 163 FCR 62
Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178
La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300
Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 12 June 2014, unrep)
Mendonca v Chan & Naylor (Parramatta) Pty as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 27 June 2014, unrep)
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta)Trust (District Court (NSW), McLoughlin DCJ, 6 November 2015, unrep)
Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), McLoughlin DCJ, 18 November 2015, unrep)
Mylan v Health Services Union NSW [2013] FCA 190
Woodland Home Products Pty Ltd v Picalovski [2010] NSWSC 629
Category: Principal judgment
Parties: Gerard Mendonca (Applicant)
Dooley & Associates Solicitors Pty Ltd As Trustee for Dooley & Associates Solicitors Unit Trust (First Respondent)
Malcolm Campbell (Second Respondent)
Mark Gunning (Third Respondent)
Representation:
Counsel:
Self represented (Applicant)
Mr D Lloyd (First and Second Respondents)
Mr A Zahra (Third Respondent)
Solicitors:
N/A (Applicant)
Kennedys (First and Second Respondents)
Sparke Helmore (Third Respondent)

File Number(s): 2015/344243
Decision under appeal

Court or tribunal:

District Court (NSW)

Date of Decision:

6 November 2015
18 November 2015

Before:

McLoughlin DCJ

File Number(s):

2012/200753

Judgment

THE COURT: The applicant seeks leave…

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: [2016] NSWCA 144
Decision Date: 27 June 2016

CaseChat Overview and Summary

The applicant, Mr Mendonca, sought orders for costs against his former solicitors, Dooley and Associates Solicitors Pty Ltd, following an unsuccessful outcome in earlier litigation. The application was heard by the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in refusing to make cost orders against the solicitors under section 348 of the *Legal Profession Act 2004* (NSW) or section 99 of the *Civil Procedure Act 2005* (NSW). These provisions relate to the recovery of costs from legal practitioners in certain circumstances.

The Court of Appeal considered the grounds of appeal, which essentially argued that the primary judge had misapplied the relevant legal tests in determining that there was no basis for making cost orders against the solicitors. However, the Court found no error in the primary judge's reasoning and concluded that the applicant had not demonstrated any arguable error of law or fact that would warrant granting leave to appeal. The Court affirmed the principles that costs orders against legal representatives are exceptional and require a high threshold to be met, which was not satisfied in this instance.

Consequently, the application for leave to appeal was dismissed, and Mr Mendonca was ordered to pay the costs of Dooley and Associates Solicitors Pty Ltd in relation to the application.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The Applicant pay the Respondents’ costs of the application.

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:	Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144
Hearing dates:	7 June 2016
Decision date:	27 June 2016
Before:	Simpson JA, Sackville AJA
Decision:	1. The application for leave to appeal be dismissed. 2. The Applicant pay the Respondents’ costs of the application.
Catchwords:	COSTS – unsuccessful party to litigation seeks costs orders against his legal representatives – whether primary judge erred in concluding that there was no basis for orders under Legal Profession Act 2004 (NSW) s 348 or Civil Procedure Act 2005 (NSW) s 99 – leave to appeal refused
Legislation Cited:	Fair Work Act 2009 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(4)(ab) Workplace Relations Act 1996 (Cth), ss 170CP, 170CS Civil Procedure Act 2005 (NSW), s 99 Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), ss 5, 8(1)(b)(ii) Legal Profession Act 2004 (NSW), ss 345, 348, 349 Supreme Court Act 1970 (NSW), s 101(2)(c) Uniform Civil Procedure Rules 2005 (NSW), r 51.12(3)(a)
Cases Cited:	Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; 179 ALR 406 Chan v Johnson [2014] NSWSC 1439 Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 Fencott v Muller [1983] HCA 12; 152 CLR 570 Goldman Sachs JB Were Services Pty Ltd v Nikoich [2007] FCAFC 120; 163 FCR 62 Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178 La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2015] NSWCA 254 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300 Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042 Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 12 June 2014, unrep) Mendonca v Chan & Naylor (Parramatta) Pty as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), Balla DCJ, 27 June 2014, unrep) Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta)Trust (District Court (NSW), McLoughlin DCJ, 6 November 2015, unrep) Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), McLoughlin DCJ, 18 November 2015, unrep) Mylan v Health Services Union NSW [2013] FCA 190 Woodland Home Products Pty Ltd v Picalovski [2010] NSWSC 629
Category:	Principal judgment
Parties:	Gerard Mendonca (Applicant) Dooley & Associates Solicitors Pty Ltd As Trustee for Dooley & Associates Solicitors Unit Trust (First Respondent) Malcolm Campbell (Second Respondent) Mark Gunning (Third Respondent)
Representation:	Counsel: Self represented (Applicant) Mr D Lloyd (First and Second Respondents) Mr A Zahra (Third Respondent) Solicitors: N/A (Applicant) Kennedys (First and Second Respondents) Sparke Helmore (Third Respondent)
File Number(s):	2015/344243
Decision under appeal	Court or tribunal: District Court (NSW) Date of Decision: 6 November 2015 18 November 2015 Before: McLoughlin DCJ File Number(s): 2012/200753