Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 8) [2020] NSWSC 1898

Supreme Court New South Wales

Medium Neutral Citation: Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 8) [2020] NSWSC 1898 Hearing dates: 10 July 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) Pursuant to Order 4 of the orders pronounced by me on 15 May 2020 in Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 7) ("the previous orders"), order the first cross-claimant to pay the costs of the second cross-defendant on the ordinary basis up to and including 27 October 2017 and on the indemnity basis thereafter; (2) Pursuant to Order 4 of the previous orders, order the first cross-claimant to pay the costs of the sixth cross-defendant on the usual basis up to and including 21 August 2018 and thereafter on the indemnity basis; (3) Pursuant to Order 4 of the previous orders, refuse the application of the first and third cross-defendants for an order for costs against the first cross-claimant on the indemnity basis; (4) Dismiss the claim of each of the first, second, third and sixth cross-defendants for an order that the third, fourth and fifth respondents ("the solicitors") pay their costs of the proceedings; (5) The first, second, third and sixth cross-defendants to pay the solicitors' costs of their application for a personal costs order against the solicitors; (6) Note that the applications brought by the first, second, third and sixth cross-defendants against the second cross-claimant are stayed by force of section 58(3) Bankruptcy Act 1966 (Cth). Catchwords: COSTS – party/party – where indemnity costs sought against unsuccessful party – whether it is appropriate to depart from the usual practice of making a costs order on the ordinary basis – whether there were no reasonable prospects of success – where success in the case depended on the preference for competing evidence – where claim was weak but not fairly unarguable COSTS – party/party – where indemnity costs sought against unsuccessful party – where order is discretionary– where imprudent to reject offer of compromise COSTS – party/party – whether indemnity costs should be awarded – where offer of compromise made in accordance with rule 42.15A UCPR – where indemnity costs ordered from date after the offer was made COSTS – party/party – orders against non-parties – where indemnity costs orders sought against solicitors of unsuccessful party – where indemnity costs sought pursuant to s 99 of the Civil Procedure Act and Schedule 2 of the Legal Profession Uniform Law Application Act – whether the legal services were provided without a reasonable belief by the solicitors that the claims had reasonable prospects of success – where conduct of the solicitors must demonstrate incompetence or unsatisfactory conduct to a high degree – where solicitors entitled to accept the evidence of their client – where relatively junior solicitors sought advice of experienced counsel – where weakness of the case does not equate to there being no prospects of success – where no cost order made against the solicitors Legislation Cited: Bankruptcy Act 1966 (Cth) s 58(3) Civil Procedure Act 2005 (NSW) ss 98, 99 Competition and Consumer Act 2010 (Cth) Sch 2, s 18 Legal Profession Act 2004 (NSW) Pt 11, Div 5 Legal Profession Uniform Application Act 2014 (NSW) s 62, Sch 2 Uniform Civil Procedure Rules 2005 (NSW) rr 7.29, 42.15A Cases Cited: Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 3) [2018] NSWSC 1378 Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 4) [2018] NSWSC 1379 Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 7) [2020] NSWSC 554 Colgate-Palmolive Company & Another v Cussons Pty Ltd (1993) 46 FCR 225 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Limited (1931) 46 CLR 41; [1931] HCA 53 Degiorgio v Dunn (No 2) 62 NSWLR 284; [2005] NSWSC 3 Di Carlo v Dubios and Ors [2002] QCA 225 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 Newell; Muriniti v De Costi (2018) 97 NSWLR 398; [2018] NSWCA 49 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 Texts Cited: Not applicable Category: Costs Parties: Reliance Medical Practice Pty Ltd trading as ATF Reliance Medical Practice Trust (First Cross-Claimant and First Respondent) Rodney John Beckwith (Second Cross-Claimant and Second Respondent) Voice Print & Data Australia Pty Ltd (First Cross-Defendant) Christian Altenburg (Second Cross-Defendant) Grant Edwards (Third Cross-Defendant) BHD Leasing Pty Ltd (Sixth Cross-Defendant) Gorval Lynch Pty Ltd (Third Respondent) Serge Gorval (Fourth Respondent) Matthew Lynch (Fifth Respondent) Representation: Counsel: D Lloyd (Third, Fourth and Fifth Respondent) A J H Morris QC with I Erskine (First and Third Cross-Defendants) A F Fernon (Second Cross-Defendant) L W Chan (Sixth Cross-Defendant)