Suncorp Finance v Klego and Ors

[2000] NSWSC 1073

NEW SOUTH WALES SUPREME COURT

CITATION:         Suncorp Finance v Klego & Ors [2000]  NSWSC 1073

CURRENT JURISDICTION:             Common Law

FILE NUMBER(S):             12930 of 1998

HEARING DATE{S):         21 November 2000

JUDGMENT DATE:           21/11/2000

PARTIES:
Suncorp Finance Limited (Plaintiff)
v
Klego Pty Limited as Trustee for Lamont Family Trust (First Defendant)
John Robert Lamont (Second Defendant)
Janet Claire Lamont (Third Defendant)

JUDGMENT OF: Master Malpass     

LOWER COURT JURISDICTION:    Not Applicable

LOWER COURT FILE NUMBER(S):              Not Applicable

LOWER COURT JUDICIAL OFFICER:          Not Applicable

COUNSEL:
Mr Meek (Plaintiff)
N/A Defendants

SOLICITORS:
Corrs Chambers Westgarth (Plaintiff)
Wayne Levick & Associates (Defendants)

CATCHWORDS:
Indemnity costs
costs order against solicitor

ACTS CITED:
N/A

DECISION:
See paragraph 6 - 7

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

TUESDAY 21 NOVEMBER 2000

12930/98   -   SUNCORP FINANCE LTD   v   KLEGO PTY LTD

(AS TRUSTEE FOR LAMONT FAMILY TRUST) & ORS

1. JUDGMENT        MASTER:  In this matter I have already made an order that the defendant pay the costs of the proceedings on an indemnity basis.  Mr Levick is the solicitor for the defendant and has acted for the defendant throughout the proceedings.  An order is now sought against him personally in the following terms:

   "Order that, in relation to the order for indemnity costs made on 4 April 2000, the defendant's solicitor, Wayne Levick, pay to the plaintiff such costs to the extent that the defendants fail to pay such costs within fourteen days after service upon Mr Levick of a certificate of determination of costs."

2. Mr Levick appears today to oppose the application.  I am satisfied that he has been given a reasonable opportunity to defend it.  He has had the opportunity to put whatever submissions he wishes to make to the Court.  Apart from a reference to s 78B, no submissions have been made.  The submission that was sought to be put in relation to s 78B was not supported by any evidence which has been received by the Court.

3. This case has similarities to what has occurred in a number of other cases in which Mr Levick has acted.  There is now a considerable body of authority that supports the application now made in this case.  It is not necessary to embark upon a detailed history of what has happened in these particular proceedings. 

4. The history is indeed very long.  It suffices to mention that it is another of those cases in which proceedings have been defended by Mr Levick on behalf of his client on an untenable basis.  There have been many adjournments.  These adjournments and other conduct in the proceedings have had the effect of bringing about substantial delay and substantially increasing the costs that are now payable.

5. In my view I am satisfied that there has been a course of conduct engaged in for the purpose of delaying these proceedings. 

6. In the circumstances of this case I am satisfied that I should proceed to make the order sought by the plaintiff.  Accordingly, I make that order.  I make it in the terms of the handwritten document handed up to the Court by Mr Meek of counsel for the plaintiff.

7. It would have been my understanding that the costs of the proceedings would embrace all costs, but for clarification and to remove any question of doubt, the orders that I have made are to include the costs of and incidental to the application before me today.

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LAST UPDATED:              15/12/2000