Kaji Australia Pty Ltd v Glover (No. 5) [2020] NSWSC 1576

Supreme Court New South Wales

Medium Neutral Citation: Kaji Australia Pty Ltd v Glover (No. 5) [2020] NSWSC 1576 Hearing dates: 16 & 17 June 2020 Date of orders: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) The defendant/cross-claimant is to pay the plaintiffs' costs of the proceedings including the costs of the cross-claim, but excluding costs related to the proceedings in the District Court and the setting aside of the judgment for possession in this Court; (2) The defendant/cross-claimant is to pay the plaintiffs' costs of the defendant/cross-claimant's notice of motion filed 3 February 2020 and of the costs hearing; (3) The defendant/cross-claimant is to pay the third and fourth cross-defendants' costs of the cross-claim; (4) The defendant/cross-claimant is to pay the fifth cross-defendant's out-of-pocket expenses actually and reasonably incurred by him; (5) Order that Leonardo Carlo Muriniti is to indemnify the third and fourth cross-defendants for 65% of their costs of the proceedings; (6) Order that Leonardo Carlo Muriniti is to indemnify the third and fourth cross-defendants for the costs of the Third and Fourth cross-defendants amended notice of motion filed 14 May 2020; (7) Order that Leonardo Carlo Muriniti is to indemnify the fifth cross-defendant for 65% of the out-of-pocket expenses actually and reasonably incurred by him. (8) Subject to orders (4) and (5), the notice of motion by the fifth cross-defendant filed on 4 March 2020 is dismissed with no order as to costs. (9) The defendant's notice of motion filed 3 February 2020 is dismissed with costs. Catchwords: COSTS - party/party – judgment for possession and for the amount owing under a loan agreement and mortgage – where defendant's claims of fraud and conspiracy were dismissed by trial judge and later by Court of Appeal – where plaintiffs sought judgment for amount owing in District Court unnecessarily - where costs arising from separate proceedings excluded from costs order COSTS - party/party - orders against non-parties - personal costs orders against lawyers of unsuccessful party – claims of fraud and conspiracy by unsuccessful defendant/cross-claimant - indemnity costs sought pursuant to Schedule 2 of the Legal Profession Uniform Law and s 99 of the Civil Procedure Act - whether the legal services were provided without a reasonable belief by the solicitors that the claims had reasonable prospects of success – where there were no provable facts to support the claims – where trial judge and Court of Appeal made earlier findings dismissing claims – where solicitors failed to rebut the presumption that they were bound by the findings in the principal judgments – whether solicitors breached their professional ethical duties in pursuing claims – where the making of allegations of dishonesty and criminality increases the onus to make out the case – where no basis for the claims made –where this amounts to the serious misconduct of the solicitors – where solicitor to indemnify for costs incurred COSTS - party/party - self represented litigant - where litigant is entitled to out-of-pocket expenses as would have constituted disbursements if they had been legally represented Legislation Cited: Australian Consumer Law s 18 Australian Securities and Investments and Commission Act 2001 (Cth) s 12DA Civil Procedure Act 2005 (NSW) s 99 Contracts Review Act 1980 (NSW) Crimes Act 1900 (NSW) s192E Evidence Act 1995 (NSW) s 91 Legal Profession Act 1987 (NSW) s 198M Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) rr 21.3, 21.4 Uniform Civil Procedure Rules 2005 (NSW) rr 15.6, 42.3 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Degiorgio v Dunn (No 2) 62 NSWLR 284; [2005] NSWSC 3 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Fowler, Corbett and Jessop trading as Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178 Glover v Kaji Australia Pty Limited [2020] NSWCA 222 Kaji Australia Pty Ltd v Glover (No 2) [2018] NSWSC 414 Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779 Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 King v Muriniti [2018] NSWCA 98 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674 Mitry Lawyers v Barnden [2014] FCA 918 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 Ralston and Collins v Chaffey [2018] NSWSC 1994 Ridehalgh v Horsfield [1994] Ch 205 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Tombling v Universal Bulb Company, Limited [1951] 2 TLR 289 Waters v P C Henderson (Australia) Pty Ltd [1994] 254 ALR 328 Texts Cited: Nil Category: Costs Parties: Kaji Australia Pty Ltd (First Plaintiff/First Cross-Defendant) William Bradley Webster (Second Plaintiff/Second Cross-Defendant) Johann Benson Glover (Defendant/Cross-Claimant) Mercia Financial Solutions Pty Ltd (Third Cross-Defendant) Richard Nicholson (Fourth Cross-Defendant) Rodney Shields (Fifth Cross-Defendant) Representation: Counsel: P Folino-Gallo (Plaintiffs/First and Second Cross-Defendants) R Newell (Defendant/Cross-Claimant) D Lloyd (Third and Fourth Cross-Defendants) R Shields (Fifth Cross-Defendant)