Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 (18 August 2021) (Bell P at [1]; Gleeson JA at [124]; Emmett AJA at [125])


Catchwords:


APPEALS – appeal from primary judgment making personal costs orders against the applicant pursuant to Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) and s 99 of the Civil Procedure Act 2005 (NSW) – where applicant was the legal practitioner for the defendant in the proceedings below and made allegations of fraudulent misrepresentation and conspiracy without any proper basis – where solicitor breached his professional ethical duties in pursuing the claims

APPEALS – application for leave to appeal – whether leave to appeal is required by a legal practitioner who is subject to a third party costs order, assuming that the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) is satisfied – leave to appeal not required pursuant to s 101(2)(c) of the Supreme Court Act on the basis that the decision was not one “as to costs only”

APPEALS – challenge to earlier decision of this Court on the basis that it was “plainly wrong” – where no real attempt was made to satisfy the requirements for a challenge to a decision of this Court as outlined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

APPEALS – procedural fairness – whether applicant was denied procedural fairness on the basis that the primary judge did not consider all of the grounds and arguments advanced by the applicant – whether applicant was denied procedural fairness in that the Court treated various findings made in the substantive judgment as beyond challenge for the purposes of the costs application – where applicant’s arguments in the costs application were essentially a replication of the arguments that had been advanced and rejected by the primary judge in the substantive judgment – where no denial of procedural fairness

COSTS – where primary judge imposed personal costs orders against the legal practitioner of the unsuccessful party in proceedings below – where applicant was the legal practitioner for the defendant in the proceedings below and improperly made allegations of fraudulent misrepresentation and conspiracy without any evidence to support it – where solicitors breached their professional ethical duties in pursuing the claims

COSTS – whether in an application for costs orders against a legal practitioner under s 99 of the Civil Procedure Act 2005 (NSW), the Court is entitled to take account of its findings in the substantive judgment – whether a legal practitioner against whom such costs orders are sought is bound by findings in the substantive judgment, even though the legal practitioner was not formally a party to the proceedings – where in the present case, the applicant was given a full and fair opportunity to explain the basis upon which he made the relevant allegations and to rebut the statutory presumption arising under cl 6 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW)

LEGAL PRACTITIONERS – obligations of solicitors arising pursuant to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21