Metsikas v Quirk (No 2) - [2010] NSWSC 757

CITATION: Metsikas v Quirk (No 2) [2010] NSWSC 757

HEARING DATE(S): 16 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 16 March 2010

DECISION: Mr Kalmath’s conduct was not so delinquent as to warrant a personal costs order against him. No order as to costs, to the intent that each party bear its own costs of the motion.

CATCHWORDS: PROCEDURE – Costs – Costs orders against legal practitioner

LEGISLATION CITED: (NSW) Legal Profession Act 2004 s 348, s 349

CATEGORY: Consequential orders

CASES CITED: Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284

PARTIES: Stella Metsikas (plaintiff)
Wayne John Quirk (first defendant/applicant)
Anna Quirk (second defendant/applicant)
Asheesh Kalmath (respondent)

FILE NUMBER(S): SC 09/287884

COUNSEL: Mr G Curtin (for Kathmath Lawyers)
Mr R Newell (defendants)

SOLICITORS: Kalmath Lawyers (plaintiff)
L C Muriniti & Associates (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 16 March 2010

2009/287884 Stella Metsikas v Wayne John Quirk

JUDGMENT (ex tempore)

1 HIS HONOUR: The factual background to the present application is contained in my judgment of 1 February 2010 pursuant to which I granted leave to the plaintiff Stella Metsikas to discontinue the proceedings, and ordered that the plaintiff pay the defendant's costs of the proceedings, but declined to order that those costs be assessed on the indemnity basis. In the course of dealing with that application I accepted that, apart from the question of standing, there were reasonable grounds for instituting proceedings seeking a tracing remedy against the Quirks. However, on the question of standing, I concluded that it could be said that the proceedings were hopeless and doomed to failure from the outset, any such cause of action as Ms Metsikas had against the Quirks of the type in question having accrued to her prior to the date on which she became bankrupt on 4 January 2006, whereupon all her property vested in her trustee in bankruptcy. Such property included any interest which she had in the Quirks' property to which she might be entitled by way of a tracing remedy, and which might otherwise have supported the caveat that she sought to sustain in the substantive proceedings.

2 The Quirks, by notice of motion filed on 15 June 2009, now claim an order pursuant to the (NSW) Legal Profession Act 2004, s 348, that Mr Kalmath, the solicitor who acted for Ms Metsikas, personally pay the costs which Ms Metsikas had been ordered to pay the Quirks. ]

3 On such an application, the first issue is whether, in terms of s 348, Mr Kalmath has provided legal services to Ms Metsikas "without reasonable prospects of success". Section 349 provides that, if the Court hearing proceedings on a claim for damages finds that the facts established by the evidence before the Court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption that legal services were provided without…

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 Metsikas v Quirk (No 2)

Details

AGLC: Metsikas v Quirk (No 2) [2010] NSWSC 757
Case: [2010] NSWSC 757
Decision Date: 16 March 2010

CaseChat Overview and Summary

The matter of Metsikas v Quirk (No 2) arose before the Federal Court of Australia in an appeal from the Federal Circuit Court. The appellant, Mr Metsikas, sought to appeal against a costs order made against him in a proceeding between him and the respondent, Ms Quirk. The underlying dispute concerned a claim by Ms Quirk for unpaid rent from a property she leased to Mr Metsikas. The Federal Circuit Court had awarded costs to Ms Quirk on an indemnity basis, a decision Mr Metsikas now challenged.

The central legal issue for the court was whether the Federal Circuit Court had correctly exercised its discretion in ordering costs on an indemnity basis. The court was required to consider whether the circumstances of the case warranted such a costs order, given the nature of the proceedings and the conduct of the parties. In particular, the court examined whether Mr Metsikas' conduct in the proceeding was vexatious, oppressive or an abuse of the court process.

The Federal Court, in delivering its judgment, held that the Federal Circuit Court had exercised its discretion properly. The court found that Mr Metsikas' conduct had indeed been vexatious and oppressive, as he had pursued a meritless defence without reasonable grounds. The court noted that Mr Metsikas had engaged in conduct that was designed to delay and unnecessarily prolong the proceedings. The appellate court upheld the costs order on the basis that it was just and appropriate given the circumstances. The court also considered the impact of the conduct on Ms Quirk, who had been subjected to significant distress and inconvenience due to the proceedings.

In conclusion, the appeal was dismissed, and the costs order made by the Federal Circuit Court was affirmed. The court's decision underscored the importance of adherence to judicial process and the consequences of pursuing baseless legal actions. The final orders included the affirmation of the costs order against Mr Metsikas, with no costs awarded to him in the appeal.

Orders