Dennis v Joukhador [2021] NSWSC 870

Supreme Court New South Wales

Medium Neutral Citation: Dennis v Joukhador [2021] NSWSC 870 Hearing dates: 4 June 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the claim of the first plaintiff pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW). (2) The second plaintiff provide security for the first defendant's costs of the proceedings in the sum of $35,000 up to the conclusion of the filing and serving of evidence in the proceedings, within 14 days of the date hereof. (3) The proceedings be stayed until the security has been provided. (4) The plaintiffs are to pay the first defendant's costs of the amended notice of motion filed 23 April 2021 with the exception of costs associated with the affidavits of Vaikom Sundar Rajeev sworn 7 June 2021 and Lydia Fernandes Fogl sworn 8 June 2021, and preparation of the submissions of the first defendant of 9 and 21 June 2021. (5) Dismiss the first defendant's notice of motion filed 8 February 2021. (6) The first defendant is to pay the plaintiffs' costs of that notice of motion. Catchwords: CIVIL PROCEDURE – summary disposal – frivolous or vexatious proceedings - notice of motion seeking summary dismissal – where solicitor practised first as sole practitioner and subsequently as employee of incorporated legal practice – where both solicitor and incorporated legal practice claimed moneys held on trust for them in relation to costs – where only incorporated legal practice provided legal services to the clients – no right to the costs by the solicitor – no reasonable cause of action by the solicitor COSTS – security for costs – whether an order should be made – where evidence indicates legal entity will be unable to pay first defendant's costs if ordered to do so – application made early in the proceedings – difficulty of assessing costs to conclusion of proceedings - order for security for costs made up to conclusion of filing of evidence COSTS – security for costs – what amount should be ordered – "Chorley" exception – where issue relates to work done by employed solicitor at the solicitor's incorporated legal practice – whether abolition of the "Chorley" exception prevents employees of incorporated legal practices recovering costs Legislation Cited: Civil Procedure Act 2005 (NSW) ss 3, 56, 58 Corporations Act 2001 (Cth) s 1335 Federal Court of Australia Act 1976 (Cth) s 31A Legal Profession Uniform General Rules 2015 (NSW) r 52 Legal Profession Uniform Law (NSW) No 16a of 2014 ss 137, 138 Uniform Civil Procedure Rules 2005 (NSW) r 13.4 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; [1952] HCA 49 Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 D A Starke Pty Ltd v Yard & Anor (No 2) [2020] SASC 81 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 In the matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) and others; Smith and Others v Anthony Gregory McGrath (in his capacity as Liquidator of HIH Insurance Limited (in liquidation)) and Others; Baldock and Others v Anthony Gregory McGrath (in his capacity as Liquidator of HIH Insurance Limited (in liquidation)) and Others;; De Bortoli Wines (Superannuation) Pty Ltd and Others v Anthony Gregory McGrath (in his capacity as Liquidator of HIH Insurance Limited (in liquidation)) and Others; Cuong Ly and Others v Anthony Gregory McGrath (in his capacity as Liquidator of HIH Insurance Limited (in liquidation)) and Others [2016] NSWSC 482 Hurst-Meyers v Aulich Civil Law Pty Ltd [2021] ACTSC 16 Jordan v Goldspring [2021] NSWSC 7 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 Shaw v State of New South Wales [2012] NSWCA 102 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 United Petroleum Australia Pty Ltd v Freehills [2020] VSCA 15 Texts Cited: Nil Category: Procedural rulings Parties: Bruce Vernon Dennis (First Plaintiff) DC Legal Pty Ltd (Second Plaintiff) Marcel Joukhador (First Defendant) Bookarelli Pty Ltd (Second Defendant) Representation: Counsel: M Castle (Plaintiffs) O Jones (First Defendant) Submitting appearance (Second Defendant)