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Nahata v Robertson (No 2)

Nahata v Robertson (No 2)

Case [2023] NSWSC 1297 6 November 2023

Costs

Admissibility of Evidence

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Nahata v Robertson (No 2) [2023] NSWSC 1297
Hearing dates: 29 September 2023
Decision date: 06 November 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
(1) Plaintiffs to pay the defendants’ costs on an indemnity basis, as agreed or assessed.
(2) Mr Jeffrey Lee, solicitor, to pay the plaintiffs the whole of the costs, for which the plaintiffs are liable, pursuant to s 99(2)(b)(ii) Civil Procedure Act 2005 (NSW).

Catchwords:
COSTS — Party/Party — Bases of quantification — Indemnity basis — Where unreasonable conduct by plaintiffs — Where application for easement doomed to fail — Where statutory requirements for reasonable engagement with defendants not met
COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — Where solicitor conduct amounts to “serious dereliction of duty, serious misconduct or gross negligence” or unreasonable conduct without cause — Where solicitor conduct caused costs of entire proceedings — Where appropriate to exercise costs discretion against solicitor

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 99
Conveyancing Act 1919 (NSW) s 88K

Cases Cited:
Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Dempster v McAndrew [2003] NSWSC 994
Gordon v Lever (2018) 97 NSWLR 90
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 70
King v Muriniti [2018] NSWCA 98
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
McGrath v Mestousis [2017] NSWSC 995
Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209
Nahata v Robertson [2023] NSWSC 642
Newell: Muriniti v De Costi (2018) 97 NSWLR 398
NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838
Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151
Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Ridehalgh v Horsefield [1994] Ch 205
RRZ Pty Ltd v Fogo Brazilia Holdings Pty Ltd [2021] NSWSC 873
Stepanoski v Chen [2011] NSWSC 1573
Studholme v Rawson (2020) 102 NSWLR 490
Tuitupou v Davis [2019] NSWSC 160

Texts Cited:
G E Dal Point, Law of Costs (5th Ed, 2021, LexisNexis)

Category: Costs
Parties: Himanshu Nahata (First Plaintiff)
Priyanka Jain (Second Plaintiff)
Russell Robertson (First Defendant)
Stana Robertson (Second Defendant)
Jeffrey Lee (Solicitor Respondent)
Representation:
Counsel:
A Pickles SC (Plaintiffs)
J Rogers (Defendants)
G Keesing (Mr Lee)
Solicitors:
Specialist Law (Defendants)
Sparke Helmore Lawyers (Mr Lee)

File Number(s): 2022/250644
Publication restriction: Nil

Judgment

On 15 June 2023, I delivered judgment in the substantive proceedings, dismissing the plaintiffs’ application for the grant of an easement pursuant to s 88K Conveyancing Act1919 (NSW): Nahata v Robertson [2023] NSWSC 642 (“Nahata”). This judgment concerns the costs of those proceedings and ought be read together with it.

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 Nahata v Robertson (No 2)

Details

AGLC: Nahata v Robertson (No 2) [2023] NSWSC 1297
Case: [2023] NSWSC 1297
Decision Date: 06 November 2023

CaseChat Overview and Summary

The case of Nahata v Robertson (No 2) involved the plaintiffs, Nahata, suing the defendants, Robertson, over an application for an easement. The matter was heard in the Supreme Court of New South Wales. The dispute centred around the costs incurred during the proceedings, specifically whether the plaintiffs were entitled to a party-party costs order under an indemnity basis and if personal costs orders could be made against the solicitors of the plaintiffs for their unreasonable conduct.

The court had to determine whether the plaintiffs' unreasonable conduct warranted a departure from the usual indemnity basis of costs. Additionally, the court examined if it was appropriate to make personal costs orders against the plaintiffs' solicitors due to their conduct being deemed as a serious dereliction of duty, serious misconduct or gross negligence, or unreasonable conduct without cause. This was particularly significant as the solicitors' conduct was found to have contributed to the costs of the entire proceedings.

In its judgment, the court found that the plaintiffs' conduct was unreasonable, leading to a failure in their application for an easement. The court also noted that the plaintiffs did not meet the statutory requirements for reasonable engagement with the defendants. Consequently, the court exercised its discretion to order that the plaintiffs pay the defendants' costs on an indemnity basis. Furthermore, the court held that personal costs orders could be made against the plaintiffs' solicitors due to their unreasonable conduct, which had caused the increased costs of the proceedings. The court concluded that it was appropriate to make these orders given the solicitors' serious dereliction of duty.

The final orders included the plaintiffs paying the defendants' costs on an indemnity basis and the plaintiffs' solicitors being personally liable for those costs. This decision underscores the importance of meeting statutory requirements for reasonable engagement and the potential consequences of unreasonable conduct by parties and their legal representatives.

Orders