Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Newell; Muriniti v De Costi [2018] NSWCA 49 Hearing dates: 10 and 11 July 2017 Decision date: 20 March 2018 Before: Beazley P at [1];
Gleeson JA at [241];
White JA at [242]Decision: (1) To the extent required, grant leave in each proceeding to the applicant to appeal from the orders.
(2) In each proceeding, appeal allowed in part.
(3) In each proceeding, cross-appeal dismissed.
(4) Declare that the appellant in proceedings 2016/385849, Mr Newell, is liable to indemnify the respondents in respect of the costs incurred by the respondents by reason of:
(a) the joinder of the fifth respondent as cross-defendant;
(b) the filing or service of more than three versions of the cross-claim;
(c) the failure to reduce the evidence in the various affidavits of Mr Wachtenheim to one affidavit or to at least many fewer affidavits than those served;
(d) the making, deployment, submissions, and hearing in respect of the illegal tape recording that was the subject of the second judgment: De Costi Seafoods (No 2) including the costs of the application dealt with in De Costi Seafoods (No 2);
(e) the failure to discover correspondence between Mr Newell, Mr Muriniti and Mr Shnider;
(f) the affidavit of Mr Ng;
(g) the allegations of impropriety against Mr Thorpe;
(h) the allegations of impropriety that the respondents obtained a misleading affidavit from Mr Shnider and Mr Shnider’s evidence.
(5) Declare that the appellant in proceedings 2016/382130, Mr Muriniti, is liable to indemnify the respondents in respect of the costs incurred by the respondents by reason of:
(a) the joinder of the fifth respondent as cross-defendant;
(b) the filing or service of more than three versions of the cross-claim;
(c) the failure to reduce the evidence in the various affidavits of Mr Wachtenheim to one affidavit or to at least many fewer affidavits than those served;
(d) the instructions given by Mr Muriniti to Mr Dent;
(e) the false account contained in Mr Wachtenheim’s affidavit dated 15 December 2011 as to how he was alerted to the issue of the understatement of sales revenue in Mr Wachtenheim’s affidavit dated 23 August 2011;
(f) the making, deployment, submissions and hearing in respect of the illegal tape recording that was the subject of the second judgment: De Costi Seafoods (No 2) including the costs of the application dealt with in De Costi Seafoods (No 2);
(g) the non-production of a diary indicated by the chronology of events forwarded by Mr Muriniti to Mr Dent;
(h) the failure to discover correspondence between Mr Newell, Mr Muriniti and Mr Shnider;
(i) the affidavit of Mr Ng;
(j) the allegations of impropriety against Mr Thorpe;
(k) the allegations of impropriety that the respondents obtained a misleading affidavit from Mr Shnider and Mr Shnider’s evidence.
(6) Remit both proceedings to the District Court for further hearing and determination in accordance with the above declarations and these reasons;
(7) Otherwise…
Keep reading for free
Create a free CaseChat account to read Newell; Muriniti v De Costi and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] NSWCA 49
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the meaning of "costs payable" in the context of legal practitioner indemnification under section 348 of the *Legal Profession Act 2004* (NSW) and section 99 of the *Civil Procedure Act 2005* (NSW). It also examined whether the primary judge had erred in applying the rule in *Jones v Dunkel* (1959) 101 CLR 298, particularly in light of the applicants' potential constraints on giving evidence due to legal professional privilege, and whether they could rely on observations made in *Medcalf v Mardell* [2003] 1 AC 120.
The Court of Appeal allowed the appeals in part, finding that the applicants were liable to indemnify the respondents for specific categories of costs. These included costs arising from the joinder of a fifth respondent, the filing of multiple versions of a cross-claim, the failure to consolidate affidavits, the handling of an illegal tape recording, the non-discovery of correspondence, the affidavit of Mr Ng, and allegations of impropriety against Mr Thorpe and Mr Shnider. The Court also found Mr Muriniti liable for costs related to instructions given to Mr Dent, a false account in an affidavit, and the non-production of a diary. The proceedings were remitted to the District Court for further hearing and determination.
Orders
Orders of the court
(1) To the extent required, grant leave in each proceeding to the applicant to appeal from the orders.
(2) In each proceeding, appeal allowed in part.
(3) In each proceeding, cross-appeal dismissed.
(4) Declare that the appellant in proceedings 2016/385849, Mr Newell, is liable to indemnify the respondents in respect of the costs incurred by the respondents by reason of:
(a) the joinder of the fifth respondent as cross-defendant;
(b) the filing or service of more than three versions of the cross-claim;
(c) the failure to reduce the evidence in the various affidavits of Mr Wachtenheim to one affidavit or to at least many fewer affidavits than those served;
(d) the making, deployment, submissions, and hearing in respect of the illegal tape recording that was the subject of the second judgment: De Costi Seafoods (No 2) including the costs of the application dealt with in De Costi Seafoods (No 2);
(e) the failure to discover correspondence between Mr Newell, Mr Muriniti and Mr Shnider;
(f) the affidavit of Mr Ng;
(g) the allegations of impropriety against Mr Thorpe;
(h) the allegations of impropriety that the respondents obtained a misleading affidavit from Mr Shnider and Mr Shnider’s evidence.
(5) Declare that the appellant in proceedings 2016/382130, Mr Muriniti, is liable to indemnify the respondents in respect of the costs incurred by the respondents by reason of:
(a) the joinder of the fifth respondent as cross-defendant;
(b) the filing or service of more than three versions of the cross-claim;
(c) the failure to reduce the evidence in the various affidavits of Mr Wachtenheim to one affidavit or to at least many fewer affidavits than those served;
(d) the instructions given by Mr Muriniti to Mr Dent;
(e) the false account contained in Mr Wachtenheim’s affidavit dated 15 December 2011 as to how he was alerted to the issue of the understatement of sales revenue in Mr Wachtenheim’s affidavit dated 23 August 2011;
(f) the making, deployment, submissions and hearing in respect of the illegal tape recording that was the subject of the second judgment: De Costi Seafoods (No 2) including the costs of the application dealt with in De Costi Seafoods (No 2);
(g) the non-production of a diary indicated by the chronology of events forwarded by Mr Muriniti to Mr Dent;
(h) the failure to discover correspondence between Mr Newell, Mr Muriniti and Mr Shnider;
(i) the affidavit of Mr Ng;
(j) the allegations of impropriety against Mr Thorpe;
(k) the allegations of impropriety that the respondents obtained a misleading affidavit from Mr Shnider and Mr Shnider’s evidence.
(6) Remit both proceedings to the District Court for further hearing and determination in accordance with the above declarations and these reasons;
(7) Otherwise order that the appeals be dismissed.
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.