Rodi v Gelonesi

The parties to this proceeding were Rodi (the applicant) and Gelonesi (the respondent). The dispute concerned an application to vary a costs order made in 2012, following the refusal of leave to appeal. The application was brought in 2016 under rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) for a personal costs order against the solicitor who acted for the unsuccessful party in the earlier proceedings. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two primary legal issues. First, whether the 14-day time limit stipulated in subrule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) precluded the applicant's application for a personal costs order. Second, the Court had to consider whether to make a personal costs order against the solicitor pursuant to sections 98 or 99 of the Civil Procedure Act 2005 (NSW), taking into account relevant discretionary factors, including the significant delay in bringing the application.

The Court reasoned that the application for a personal costs order was out of time, as it was made significantly beyond the 14-day period prescribed by rule 36.16(3A). The Court noted that while rule 36.16 permits variations of orders, the specific subrule governing applications for personal costs orders against legal practitioners imposed a strict time limit. The Court also considered the discretionary factors, including the substantial delay in bringing the application, which weighed against granting the relief sought.

The Court of Appeal dismissed the amended notice of motion filed on 8 November 2016 and ordered that the applicant pay the respondent's costs.