Nunis v Oak Capital Group Wholesale Fund Pty Ltd
[2024] FedCFamC2G 127
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nunis v Oak Capital Group Wholesale Fund Pty Ltd [2024] FedCFamC2G 127
File number(s): PEG 52 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 20 February 2024 Catchwords: PRACTICE AND PROCEDURE – COSTS – costs sought against solicitor – relevant considerations. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 191
Bankruptcy Act 1966 (Cth), ss 30, 40, 41
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 22.06
Cases cited: Knight v FP Special Assets Ltd (1992) 174 CLR 178
Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456
Mitry Lawyers v Barnden [2014] FCA 918
Australian Securities and Investments Commission v Forge (2003) 133 FCR 487
Division: General Number of paragraphs: 48 Date of hearing: 26 September 2023 Place: Perth Counsel for the Applicant: Mr T Langdon Solicitor for the Applicant: TGC Lawyers Counsel for the Respondent: Mr N Wallwork Solicitor for the Respondent: Summer Lawyers ORDERS
PEG 52 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RALPH MARCEL NUNIS
Applicant
AND: OAK CAPITAL WHOLESALE FUND PTY LTD ACN 622 106 692
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application to amend the orders made on 17 July 2023 be refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant, Mr Nunis, brought this proceeding on 6 April 2023 seeking an order that a bankruptcy notice addressed to him and issued on 10 March 2023 (Bankruptcy Notice) be set aside. The respondent, Oak Capital Group Wholesale Fund Pty Ltd (Oak Capital), opposed that application on various grounds. Over the course of the next four months the matter was listed no fewer than five times only to be adjourned to a later date. On 17 July 2023 a registrar dismissed Mr Nunis’s application and ordered him to pay Oak Capital’s costs. The registrar also granted the parties liberty to apply to amend the costs order.
Exercising that liberty, by letter dated 1 August 2023 Oak Capital applied to the Court for an amendment to the 17 July 2023 costs order to the effect that the solicitors acting for Mr Nunis, Timohir Galic and his firm TGC Lawyers, be made jointly and severally liable for payment of Oak Capital’s costs of the proceeding. These reasons concern that application.
APPLICATION FOR COSTS
Oak Capital sought amendment of the costs order by:
1deleting ‘The Applicant pay the Respondent’s costs of the Application, including any reserved costs, to be assessed if not agreed.’; and
2inserting ‘Pursuant to Rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Zakon Holdings Pty Ltd ACN 634 553 969 trading under the name and style of TGC Lawyers and Tihomir Galic jointly and severally pay the respondent's costs of the proceeding to be taxed on an indemnity basis if not agreed.’ in its place …
The evidence supports a conclusion that Mr Galic’s legal practice is an incorporated one operated by Zakon Holdings Pty Ltd trading as TGC Lawyers and that Mr Galic is the sole director, secretary and shareholder of that company. I find those to be the facts.
RELEVANT LEGISLATION AND RULES
Section 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court’s Statute) provides relevantly:
191 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2)A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:
(a)take account of the duty imposed on the party by subsection (1); and
(b)assist the party to comply with the duty.
…
(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.
(6)If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.
Rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides relevantly:
22.06 Order for costs against lawyer
(1) The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
…
BACKGROUND FACTS
Although the evidence led in this part of the proceeding through the affidavit of the respondent’s solicitor, Mr Yam, sworn 31 July 2023 and the affidavit of Mr Galic sworn 11 September 2023 did not refer to it, it was commonly accepted that the Bankruptcy Notice was based on a judgment for Oak Capital against Mr Nunis in proceedings in the District Court of Western Australia (DC Proceedings). An appeal against that judgment was filed as was an application for a stay of execution. Those latter stages of the District Court proceedings were largely coincidental with this proceeding.
EVIDENCE
Chronology
DC Proceedings – Judgment of registrar and appeal therefrom
Judgment in the DC Proceedings was pronounced on 23 February 2023 and an appeal filed on 15 March 2023. Mr Galic obtained a transcript of the District Court Registrar’s reasons for decision on 5 April 2023. The appeal, which appears to have been a hearing de novo presumably before a judge, was listed for 19 September 2023. Mr Galic deposed in relation to the listing of the appeal:
I was very surprised when the Court was prepared to list the hearing of the appeal as late as 19 September 2023 to accommodate the Respondent's Counsel Mr Firios's availability. There were dates available in June which I was happy to take but Mr Firios indicated to the Court that he would not be available until September 2023. I informed the Court that I myself had availability issues in July because I would be away at that time but had the matter been listed for July another lawyer or counsel would have been engaged. I had never intended for the hearing of the appeal to be delayed for so long.
Commencement of this proceeding (“FCFCOA Div 2 Proceeding”)
As stated earlier, this proceeding was commenced by Mr Nunis on 6 April 2023. The grounds of the application were set out in Mr Nunis’s affidavit in support sworn 6 April 2023 as follows:
(a) The debt on which the bankruptcy notice is based does not exist.
(b) Alternatively, I have a counter-claim, set-off or cross demand could not have been set up in the action or proceeding in which the creditor obtained the judgment on which the bankruptcy notice is based.
(c) The same is an abuse of process.
6 April 2023 and 8 May 2023 – FCFCOA Div 2 Proceeding
The Court file records that the application was listed for its first return on 6 April 2023 at which time it was ordered that:
1.The time for compliance with Bankruptcy Notice BN 259202 issued on 10 March 2023 be extended until 5.00pm on 8 May 2023 or until further order, whichever comes first.
2.The application be listed for hearing on 8 May 2023 at 10.00 am.
On 8 May 2023 the registrar ordered that:
1. The hearing of the application be adjourned to 22 May 2023 at 10.00am.
2.The time for compliance with Bankruptcy Notice BN 259202 issued on 10 March 2023 be extended until 5.00pm on 22 May 2023 or until further order, whichever comes first.
Mr Scovell of Counsel appeared for Mr Nunis on that occasion.
Parties’ correspondence May 2023 – FCFCOA Div 2 Proceeding
Annexed to the affidavit of Oak Capital’s solicitor Christopher Yam sworn 31 July 2023 was a copy of an email he sent to Mr Galic dated 10 May 2023 inviting agreement to a timetable for the preparation of the matter:
...
We propose these timetabling orders for the filing and service of supplementary evidence by the parties:
1 by 12 May 2023, the applicant files and serves on the respondent any further affidavit(s) that he intends to rely on;
2 by 19 May 2023, the respondent files and serves on the applicant any further affidavit(s) that it intends to rely on;
(timetabling orders).
Please let us know by no later than 5:00 p.m. AWST today whether the applicant consents to the timetabling orders.
No reply was received and Mr Yam wrote again on 12 May 2023 saying, in part:
If you do not tell us by 12:00 p.m. AWST today whether the applicant consents to/opposes the timetabling orders, the respondent and us [sic] will proceed on the assumption that the applicant is content with the timetabling orders.
Mr Galic responded on 12 May 2023 saying:
Mr Yam
No assumptions should be made.
I don’t consent. There were no orders made.
I suggest we have until next Tuesday to file further evidence save for evidence of solvency which might take longer.
21 May 2023 – DC Proceedings – application for stay
Oak Capital’s written submission in this proceeding state that on 21 May 2023 Mr Nunis applied for a stay in the District Court. The parties advised the Court at the hearing of this application that the stay was not pursued as, before it was argued, this proceeding was dismissed.
22 May 2023 – FCFCOA Div 2 Proceeding
On 22 May 2023 the registrar ordered:
1. The application be adjourned to 19 June 2023 at 10.00 am.
2. The time for compliance with Bankruptcy Notice BN 259202 issued on 10 March 2023 be extended until 5.00pm on 19 June 2023 or until further order, whichever comes first.
3. Costs reserved.
Mr Galic appeared for Mr Nunis on that occasion.
15 June 2023 – DC Proceedings – application for stay
On 15 June 2023 the District Court application for a stay was adjourned to a date in August 2023.
19 June 2023 - FCFCOA Div 2 Proceeding
On 19 June 2023 the registrar ordered:
1. The application be adjourned to 10 July 2023 at 10.00 am.
2. If any further adjournment is sought, the Applicant is to file and serve by no later than 6 July 2023 an affidavit outlining the reasons for the adjournment.
3. The time for compliance with Bankruptcy Notice BN 259202 issued on 10 March 2023 be extended until 5.00pm on 10 July 2023 or until further order, whichever comes first.
4. Costs reserved.
Mr Scovell of Counsel appeared for Mr Nunis on that occasion. Mr Galic deposed that his relationship with that counsel “fell apart” on the day before he left for overseas on 4 July 2023 for his wedding in Europe at the end of that month.
No affidavit of the sort referred to in the registrar’s orders was filed.
Events of 10 July 2023 – FCFCOA Div 2 Proceeding
On 10 July 2023 Mr Nunis appeared unrepresented having filed no affidavits additional to his affidavit of 6 April 2023. The registrar ordered:
1. The application be adjourned to 17 July 2023 at 10.00am.
2. The time for compliance with Bankruptcy Notice BN 259202 issued on 10 March 2023 be extended until 4.30pm on 17 July 2023 or until further order, whichever comes first.
3. Costs reserved.
A copy of an email dated 10 July 2023 and sent to the parties by “WA Registrar Support” was attached to Mr Galic’s affidavit sworn on 11 September 2023. That email set out the events of the hearing on 10 July 2023 as follows:
(a)there was no appearance by any legal representative for Mr Nunis and he had appeared in person;
(b)the Court had not been advised beforehand that Mr Nunis might not be represented on 10 July 2023;
(c)the matter could not be substantively progressed in light of the unexplained absence of Mr Nunis’s legal representative;
(d)the registrar noted that there had been no compliance with the 19 June 2023 order requiring any affidavit in support of any further adjournment be filed by no later than 6 July 2023;
(e)the registrar adjourned the matter to the next bankruptcy list, on 17 July 2023; and
(f)Mr Galic was directed by the registrar to provide, on a confidential basis if appropriate, a written explanation of why no legal practitioner had appeared for Mr Nunis on 10 July 2023 and why the Court had not been notified beforehand that this might occur.
Mr Galic deposed:
16.Following the unfortunate events that took place at the hearing on 10 July 2023, on 11 July 2023 I was urgently put in contact with Mr Hector West who is a senior partner in Hall & Willcox to assist my client in whichever way possible including going on record if necessary. I sent various papers to Mr West.
17.I am informed by Mr West and my client, and I believe, that Mr West met with my client shortly afterwards. Mr West assisted me by urgently contacting Conor Breheny of Counsel to seek his availability to appear at the 17 July 2023 hearing. On 14 July 2023, I briefed Mr Breheny to attend that hearing.
18.It is unfortunate that in the circumstances of my absence, the breakdown in my relationship with Mr Scovell, and the time allowed between the 10 July 2023 and 17 July 2023 hearings, I briefed Mr Breheny at very short notice.
19.I accept that I am responsible for the conduct of this proceeding, and that because of decisions I made, the application was not ready for hearing by the time it was dismissed, and multiple hearings were adjourned.
Events of 17 July 2023 – FCFCOA Div 2 Proceeding
The Court file indicates that Mr Scovell of Counsel appeared for Mr Nunis at hearing on 17 July 2023 and that Mr Breheny of Counsel also appeared in a capacity described as “other”.
On 17 July 2023 the registrar dismissed with costs the application to set aside the Bankruptcy Notice and granted the liberty to apply to amend the costs order, the exercise of which is the basis of the present aspect of this proceeding.
General conduct of this proceeding
In his affidavit of 22 September 2023 Mr Galic deposed to the pressing need for him to travel when he did and to the work-related pressure which planning for his absence caused as he is a sole practitioner. He also deposed that his practice followed him to Europe where he had had to do more work than he had anticipated, which at times caused him great tiredness. Mr Galic deposed to the various steps he had taken while overseas to manage this matter and also to engage the assistance of other practitioners once it became apparent to him that Mr Scovell “would not be appearing”. He further deposed that he had intended to inform the Court that no legal practitioner would be appearing for Mr Nunis on 10 July 2023 but overlooked that step when briefing Mr Nunis on what to do when at Court and had not advised Oak Capital’s solicitors as he questioned the utility of doing so because he doubted that consent to an adjournment would be forthcoming. He expressed regret for not having advised the Court and his opponents and concluded:
I have consistently directed my client towards early resolution of this matter instead of prolonged litigation.
I have never sought to abuse the processes of the Court intentionally, by design or otherwise.
CONSIDERATION
Relevant principles
Section 191 of the Court’s Statute requires parties to proceedings in the Court to conduct their proceedings consistently with the overarching purpose of the Court’s civil practice and procedure provisions, namely the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Further s.191(2) requires legal practitioners acting for parties before the Court to take account of the duty s.191(1) imposes on them and to assist them to comply with it. When awarding costs in a proceeding the Court is to take into account any failure by a party or their legal representative to comply with those duties: s.191(4).
Those considerations are the statutory background against which the present application that Mr Galic and his firm pay Oak Capital's costs of the proceeding are to be determined. More generally the discretion to order that costs be paid by a party’s legal representatives is to be exercised judicially and in accordance with general legal principles relating to the law of costs: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192. Whether any such costs should be awarded on the indemnity basis, as Oak Capital sought, is a matter for separate consideration and depends on Oak Capital persuading the Court to amend the orders of 17 July 2023.
As Lee J recorded in Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456 at [26], the principles guiding the exercise of the discretion to order costs against a party’s legal representative were collated by Wigney J in Mitry Lawyers v Barnden [2014] FCA 918 at [42] in the following terms:
1.Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.
2. Something which involves “unreasonable conduct” is required.
3.What constitutes unreasonable conduct will depend on the circumstances of the particular case.
4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.
5.The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.
6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.
7.The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them
Justice Lee added two further matters to Wigney J’s list, saying at [27]:
… First, despite the focus on “unreasonable conduct” in the context of non-party costs orders, orders for costs are compensatory, not punitive: see Lazoudis v Casey (1990) 170 CLR 534. Secondly, although such orders have been described as “exceptional”, as McColl JA observed in Yu v Cao (2015) 91 NSWLR 190 at 216 [139]:
“[E]xceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense ... [t]he ultimate question [being] whether in all the circumstances it is just to make the order.” The power to order non-party costs “is inevitably to some extent a fact-specific jurisdiction and ... there will often be a number of different considerations in play, some militating in favour of an order, some against.”
Submissions
In its written submissions, Oak Capital submitted that a personal costs order was appropriate in this matter because of what it contended were the following shortcomings in Mr Nunis’s case attributable to Mr Galic’s management of it:
a. Mr Galic failed to attend, or send another person to attend, the hearing on 10 July 2023;
b. Mr Galic’s unsatisfactory conduct of the proceeding wasted the Court’s time and caused excessive costs to be incurred by the respondent; and
c. the proceeding was incompetent from the outset and was ultimately dismissed for being without merit.
It was contended that Mr Galic’s conduct, in repeatedly taking action only at the last minute, leading to a waste of time including court time, disregarding court orders and failing to appear on 10 July 2023, exacerbated what was said to have been the hopelessness of the case.
Prospects
A bankruptcy notice can only be issued if the criteria of s.41 of the Bankruptcy Act 1966 (Cth) (Act) are satisfied including, most relevantly, that the creditor has obtained against a debtor one or more final judgments or final orders that have been served on the debtor, that have not been stayed and that total at least $10,000. The Act does not provide, in terms, that the Court may set aside a bankruptcy notice although it is implicit from s.40(1)(g) and subss.41(6A) and (7) of the Act that if criteria found in those provisions are satisfied, the Court may exercise the discretionary power given to it by s.30 of the Act to do so: Australian Securities and Investments Commission v Forge (2003) 133 FCR 487 at 492 [25]-[26] per Emmett J, Branson and Stone JJ agreeing at 488 [1].
By virtue of s.40(1)(g) of the Act, a bankruptcy notice is liable to be set aside if it is based on a judgment or order that has been stayed or if the debtor:
… has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained.
It appears that the District Court judgment grounding the Bankruptcy Notice was never stayed, in that although an application for a stay was made it was never heard because the proceedings concluded before it could be. The only other basis on which this present proceeding could have been brought was if Mr Nunis had had a cross claim or similar that was at least as large as the District Court judgment and which could not have been raised in the District Court proceedings. In his affidavit filed in support of his application to set aside the Bankruptcy Notice, Mr Nunis deposed:
21. I believe I have a genuine counter-claim, set-off or cross demand equal to or exceeding the amount claimed in the bankruptcy notice that has reasonable prospects of success and that the counter-claim, set-off or cross demand could not (by reason of the suspension clause) have been set up in the action or proceeding in which the creditor obtained the judgment on which the bankruptcy notice is based.
Mr Nunis’s stated belief would have been insufficient to prove the existence of the cross claim or similar but it was sufficient to justify the making of the application.
It is apparent that Mr Nunis never made out his allegation that he had a balancing cross-claim but it was not suggested that this failure was Mr Galic’s fault or that he knew, at any time, that Mr Nunis was or would be unable to make good his assertions. The serious dereliction of duty which is required before a legal practitioner will be made liable for a party’s costs is not apparent in circumstances that demonstrate no more than that the grounds of the application to set aside the Bankruptcy Notice were not made out and that, at the time that application was dismissed, the application to the District Court to stay the judgment was listed for the following month while the substantive application to set aside the judgment was still two months from a hearing.
It should also be noted, as Oak Capital has, that Mr Galic was absent from the last two court occasions. The present relevance of that fact is that he was therefore not directly involved in what happened on those days apart from, on the latter, having involved another solicitor more senior than himself and having briefed counsel. It was not suggested that those practitioners had misgivings about the proceeding of any relevance to the present application or about acting for or assisting Mr Nunis.
Oak Capital has submitted that:
At the fifth hearing, the application was dismissed in a summary fashion because the application was entirely devoid of merit
and it seems that its complaint is really no more than Mr Nunis’s application was doomed to fail and that Mr Galic was in some way culpable by acting for him. Significantly, Mr Galic was not cross-examined on his affidavit. The authorities referred to earlier make it plain that merely acting in a hopeless case is not sufficient to invoke the jurisdiction to make a costs order against a legal practitioner and I am not persuaded that other circumstances evidencing unreasonable conduct involving a dereliction of duty on Mr Galic’s part have been demonstrated.
“Consistent taking of action only at the last minute”
In his affidavit sworn 1 August 2023, Mr Yam deposed that:
(a)between 10 and 15 May 2023 the parties’ solicitors reached agreement prior to the third directions hearing, on 22 May 2023, that Mr Nunis was to file and serve supplementary evidence other than evidence of solvency by 16 May 2023 and that Oak Capital was to file and serve any further affidavits by 19 May 2023;
(b)affidavits of Mr Nunis and Mr Galic were filed on 18 May 2023 and served at 4:28pm that day and an affidavit of Mr Yam was filed and served the next day;
(c)a further affidavit of Mr Galic was filed on 22 May 2023, the day of the third directions hearing, and served at 10:34 that day;
(d)a further affidavit of Mr Yam was filed and served on 14 June 2023; and
(e)Mr Nunis did not file or serve any further affidavits prior to the fourth and fifth directions hearings on 19 June 2023 and 10 July 2023, respectively.
Oak Capital’s submissions also made reference to steps supposedly not taken in the District Court proceedings but no evidence was led which provided a foundation for those comments.
Submissions were also made concerning the various adjournments in this proceeding and why they had been necessary but no adequate distinction between Mr Nunis and Mr Galic was drawn such that it is possible to identify unreasonable behaviour on Mr Galic’s part as the reason for Mr Nunis’s apparent inability to advance his case in a timely manner. Accusations that Mr Galic filed documents late says nothing about why the documents were late or what culpability Mr Galic may have had for the tardiness. There was no proper evidentiary basis for Oak Capital’s submission in its address that Mr Galic:
consistently attend[ed] to matters only at the last possible moment.
It was further argued in Oak Capital’s address that it could be inferred from that conduct that the delays had been contrived by Mr Galic to procure adjournments and to cause it to incur costs. However, no evidence was adduced which shed any light on what events had preceded those “last possible” moments or why they occurred. On the material before the Court I am not willing to draw an inference that the delays of which Oak Capital complains were necessarily Mr Galic’s fault, much less that they evidence:
… a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.
The evidence relied on is too flimsy to support the serious findings of wrongdoing for which Oak Capital contends. Further thought should have been given to the matter before such contentions were advanced.
Failure to observe court orders
In its submissions on the question of compliance with orders of the Court, Oak Capital argued that orders were not observed properly and then made assertions against Mr Nunis and Mr Galic, apparently assuming that Mr Galic was responsible for largely everything and that Mr Nunis was responsible for largely nothing. That confuses the responsibilities of the respective men in circumstances where the evidence is essentially silent on which of them was responsible for what.
Absence on 10 and 17 July 2023
Mr Galic’s failure to make proper arrangements for the management of Mr Nunis’s case before the registrar on 10 July 2023 has been explained in his affidavit. What happened was undoubtedly unsatisfactory but Mr Galic has made a clean breast of his circumstances at the time and in my view they reflect a breakdown in system rather than a deliberate attempt to subvert the progress of the litigation. Similarly, Mr Galic’s evidence of the steps he took to arrange representation for Mr Nunis on 17 July 2023 demonstrates energy in addressing the concerns expressed by the registrar on 10 July 2023.
CONCLUSION
Oak Capital has not led evidence which satisfies me that Mr Galic was guilty of conduct that meets the test for a personal costs order as explained by Wigney J in Mitry Lawyers v Barnden.
The application to amend the orders made on 17 July 2023 will be refused.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 February 2024
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