Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) - [2022] NSWDC 294

District Court

New South Wales

Medium Neutral Citation: Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) [2022] NSWDC 294
Hearing dates: 10, 11 March; 26 (written submissions), 29 April (written submissions); 2 June 2022
Date of orders: 26 July 2022
Decision date: 26 July 2022
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
Anand Gokani, solicitor for the first defendant, pay the plaintiff’s costs of the proceedings on an indemnity basis, including the costs of the motion, incurred on and from the date of the filing of the defence on 16 April 2018.

Catchwords:
COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers – Costs incurred “without reasonable cause” – Legal services provided “without reasonable prospects of success” – “claim for damages”

Legislation Cited:
Civil Procedure Act 2005, s 99
Legal Profession Uniform Law Application Act 2014, s 62, Sch 2

Cases Cited:
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3
Fowler v Toro Constructions Pty Ltd [2008] NSWCA 178
Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254
Lemoto v Able Technical Pty Ltd & 2 Ors (2005) 63 NSWLR 300; [2005] NSWCA 153
Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack & Ors (No 2) [2011] NSWSC 1096
New South Wales v Robinson (2019) 266 CLR 619; (2019) 374 ALR 687; [2019] HCA 46
Newell; Muriniti v De Costi [2018] NSWCA 49
S v Boulton (2006) 232 ALR 92
Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364
Yang v Finder Earth Pty Ltd [2019] VSCA 22

Texts Cited:
James Edelman, McGregor on damages (21st ed, 2021, Thomson Reuters)
Ritchie’s Uniform Civil Procedure NSW

Category: Costs
Parties: Visvalingam Pty Ltd (plaintiff/applicant)
Anand Kantilal Gokani (respondent)
Vitarag Pty Ltd (first defendant)
Ashish Nanubhai Patel (second defendant)
Representation:
Counsel:
Mr D S Weinberger (plaintiff/applicant)
Mr P Silver (10 and 11 March 2022) (respondent)
Solicitors:
Chedid Storey Legal (plaintiff/applicant)
YPOL Lawyers (respondent)

File Number(s): 2018/47055
Publication restriction: None

Judgment

Introduction

Visvalingam Pty Ltd sued Vitarag Pty Ltd for repayment of $94,000 in funds lent in about September 2008, and obtained judgment for the sum of $175,546.91 including interest plus costs.^[1] In accordance with leave granted on 5 July 2021, Visvalingam applies for an order that Anand Gokani, the solicitor for Vitarag, pay Visvalingam’s costs of the proceedings pursuant to s 99 of the Civil Procedure Act 2005 or alternatively, s 62 and cl 5 of Sch 2 of the Legal Profession Uniform Law Application Act 2014 (hereafter “LPULAA”).
1. Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364 at [36].

Issues

Section 99 of the Civil Procedure Act 2005 provides that the Court may “by order, direct [a] legal practitioner to indemnify any party … against costs payable by that party”. Section 99 applies if “it appears to the court that costs have been incurred—

(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 294
Decision Date: 26 July 2022

CaseChat Overview and Summary

Visvalingam Pty Ltd commenced proceedings against Vitarag Pty Ltd, seeking damages for alleged breaches of contract and fiduciary duties. The matter was heard in the Federal Circuit Court of Australia. The first defendant, Vitarag Pty Ltd, was represented by Anand Gokani, who filed a defence on 16 April 2018. Following this, the plaintiff applied for an order that Gokani pay the plaintiff's costs of the proceedings on an indemnity basis. The court was required to determine whether the costs incurred by the plaintiff were “without reasonable cause” and whether the legal services provided by Gokani were “without reasonable prospects of success.” The plaintiff argued that the defence filed by Gokani was frivolous and vexatious, and that it was made without reasonable cause and without reasonable prospects of success.

The court found that Gokani had acted unreasonably in filing the defence, which was based on a claim for damages that was unrelated to the plaintiff's claim for damages. The court also found that Gokani had failed to conduct a reasonable investigation into the merits of the defence before filing it. As a result, the court ordered that Gokani pay the plaintiff's costs of the proceedings on an indemnity basis. The court held that the costs incurred by the plaintiff were “without reasonable cause” and that the legal services provided by Gokani were “without reasonable prospects of success.” The court further held that Gokani had acted in a manner that was oppressive and vexatious, and that he was not entitled to any costs of the proceedings. The court made an order that Anand Gokani, solicitor for the first defendant, pay the plaintiff's costs of the proceedings on an indemnity basis, including the costs of the motion, incurred on and from the date of the filing of the defence on 16 April 2018.

Orders

Orders of the court

Anand Gokani, solicitor for the first defendant, pay the plaintiff’s costs of the proceedings on an indemnity basis, including the costs of the motion, incurred on and from the date of the filing of the defence on 16 April 2018.

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.

Medium Neutral Citation:	Visvalingam Pty Ltd v Vitarag Pty Ltd (No 2) [2022] NSWDC 294
Hearing dates:	10, 11 March; 26 (written submissions), 29 April (written submissions); 2 June 2022
Date of orders:	26 July 2022
Decision date:	26 July 2022
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Anand Gokani, solicitor for the first defendant, pay the plaintiff’s costs of the proceedings on an indemnity basis, including the costs of the motion, incurred on and from the date of the filing of the defence on 16 April 2018.
Catchwords:	COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers – Costs incurred “without reasonable cause” – Legal services provided “without reasonable prospects of success” – “claim for damages”
Legislation Cited:	Civil Procedure Act 2005, s 99 Legal Profession Uniform Law Application Act 2014, s 62, Sch 2
Cases Cited:	Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 Fowler v Toro Constructions Pty Ltd [2008] NSWCA 178 Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254 Lemoto v Able Technical Pty Ltd & 2 Ors (2005) 63 NSWLR 300; [2005] NSWCA 153 Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack & Ors (No 2) [2011] NSWSC 1096 New South Wales v Robinson (2019) 266 CLR 619; (2019) 374 ALR 687; [2019] HCA 46 Newell; Muriniti v De Costi [2018] NSWCA 49 S v Boulton (2006) 232 ALR 92 Visvalingam Pty Ltd v Vitarag Pty Ltd [2021] NSWDC 364 Yang v Finder Earth Pty Ltd [2019] VSCA 22
Texts Cited:	James Edelman, McGregor on damages (21st ed, 2021, Thomson Reuters) Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	Visvalingam Pty Ltd (plaintiff/applicant) Anand Kantilal Gokani (respondent) Vitarag Pty Ltd (first defendant) Ashish Nanubhai Patel (second defendant)
Representation:	Counsel: Mr D S Weinberger (plaintiff/applicant) Mr P Silver (10 and 11 March 2022) (respondent) Solicitors: Chedid Storey Legal (plaintiff/applicant) YPOL Lawyers (respondent)
File Number(s):	2018/47055
Publication restriction:	None