Nahata v Robertson (No 2)

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.