Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 Hearing dates: 03 June 2021 Date of orders: 18 August 2021 Decision date: 18 August 2021 Before: Bell P at [1]; Gleeson JA at [124]; Emmett AJA at [125] Decision: Appeal dismissed with costs 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 Legislation Cited: Civil Procedure Act 2005 (NSW) s 99 Evidence Act 1995 (NSW) ss 91, 140(2) Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2, cll 2(1), 5, 6(1) Supreme Court Act 1970 (NSW) ss 101(2)(c), 101(2)(r) Supreme Court Act 1981 (UK) s 18(1)(f) Supreme Court Act 1995 (Qld) s 253 Federal Circuit Court Rules 2001 (Cth) r 21.07 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) rr 21, 21.3 Cases Cited: Arena Management Pty Ltd (Receiver and Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128 Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2004] 2 Qd R 11; [2003] QCA 516 Etna v Arif [1999] 2 VR 353; [1999] VSCA 99 Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134 Fowler, Corbett and Jessop trading as Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Glover v Kaji Australia Pty Limited [2020] NSWCA 222 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 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) 97 NSWLR 991; [2018] NSWCA 98 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 Levick v Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674 Mitry Lawyers v Barnden [2014] FCA 918 Oxer v Astec Paints Australia Pty Ltd [2008] SASC 64 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Ridehalgh v Horsefield [1994] Ch 205 Symphony Group Plc v Hodgson [1994] QB 179 The State of Queensland v The Commonwealth of Australia (1977) 139 CLR 585; [1977] HCA 60 Tombling v Universal Bulb Company, Limited [1951] 2 TLR 289 Category: Principal judgment Parties: Leonardo Carlo Muriniti (Applicant) Mercia Financial Solutions Pty Ltd (First Respondent) Richard Nicholson (Second Respondent) Rodney Shields (Third Respondent) Representation: Counsel: