AZAR v LONDON ENTERPRISES PTY LTD (T/as PAPPA GIUSEPPI'S FROZEN FOOD; AZAR v LONDON ENTERPRISES PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 15 October 1991 [1991] NSWCA 3 Clarke JA. This matter was before the Court again today for consideration of the appropriate cost order. The reason why cost orders were not made when the motion was disposed of was that there was initially an application by the claimant/respondent for an order that Messrs Anthony Malouf and Co, the solicitors for the appellant in at least the early stages of the appeal, pay the respondent's costs of its appearance of 16 September 1991. The position became complicated when counsel for the appellant sought a much wider cost order against Messrs Anthony Malouf, but was forced to concede that no notice had been given to that firm of the application for a wider order. The matter was then adjourned until today. Due notice was given and Mr Lanigan, of counsel, appeared today on behalf of Messrs Anthony Malouf and Co, to oppose the making of any costs order against his client. In support of that opposition, counsel sought and was grantedleave to file in court an affidavit of Gerard Francis Malouf sworn 15 October 1991. In that affidavit Mr Malouf recounted some of the details of the rather sorry history of this case and proffered an explanation why no one had been at court on 16 September when the matter was first before Mr Justice Priestley. Once the affidavit was read, counsel for the appellant withdrew the application for the wider costs order which he had foreshadowed on the earlier occasion. As a result, Iam concerned only to decide whether it is appropriate that the appellant should pay the claimant/respondent's costs of the notice of motion or whether she should pay those costs subject to another order that Messrs Anthony Malouf and Co pay the costs of 16 September 1991. Mr Lanigan submits that no order should be made against his client because such an order is an extreme sanction that should only be made in exceptional circumstances. He does, however, concede that there was no appearance on 16 September 1991 and that his client had not filed a proper notice of ceasing to act before that date. What occurred was that his client forwarded a letter of 9 September to the appellant informing her that it was proposed to file a notice of ceasing to act and, two days later, endeavoured to file a notice of ceasing to act. The rules are that a solicitor should give at least seven days notice to the client before filing a notice of ceasing to act, unless he obtains the leave of the court. No application was, of course, made for the leave of the court tofile a notice of ceasing to act and, accordingly, the document sent to the court on 11 September was of no effect. More importantly, however, no notice whatever was given to the solicitors for the claimant/respondent of the intention of the solicitor to withdraw from the case, with the consequence that when counsel for the respondent came to court on 16 September there was no one present to oppose the application and counsel was unaware of the reasons why the appellant, herself, was not in court. 2 UNREPORTED JUDGMENTS What I am really concerned to investigate is whether the absence of parties on 16 September was the responsibility of the solicitors or of the appellant herself. I do not think this question is difficult to answer, for on any view the solicitor should have been here. He had not filed a notice of ceasing to act, or at least a proper one, had not notified the claimant/respondent that he was withdrawing from the case and had merely served a letter of intention upon the client who, it is agreed, does not speak English. What he did was, in the circumstances, in effect to leave her without proper representation. He ought to have realised that he was not fulfilling his responsibility to the court, to the other litigant and his client, to ensure that his client was fully apprised of his intention not to appear on 16 September. In all the circumstances I think that the costs of that date were wasted as a result of the failure of Messrs Anthony Malouf and Co to act with proper concern for his client and the opposing party, quite apart from their responsibility to the court. In those circumstances I am of the opinion that the order sought by the claimant/respondent should be madeand, accordingly, I make the following orders in respect of the costs of the motion. Subject to what appears below, the appellant is to pay the respondent's costs of and incidental to the respondent's notice of motion dated 2 September 1991. Messrs Anthony Malouf and Co, and not the appellant, are to pay the respondent's costs, including counsel fees, of its appearance on 16 September 1991 on a party and party basis. I will note that there is no occasion for delaying the payment of any of those costs until the termination or conclusion of the appeal. Orders accordingly.