THIRTIETH CEMALUX PTY LTD v SCHWARTZ [1996] NSWCA 527

THIRTIETH CEMALUX PTY LTD v SCHWARTZ

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY ACJ and PRIESTLEY AP 26 August 1996

[1996] NSWCA 527

Mahoney ACJ. This is an application made on behalf of the successful respondent to a summons for leave to appeal that within the terms of Pt 52 r 66(1) the solicitor for the applicant be directed to indemnify the successful respondent to the summons against the costs payable by that respondent.

The application has been made at some length and it is not necessary for me to attempt to detail all of the matters which have been urged in support of it.

Rule 66(1) provides:

Where costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default and it appears to a court that a solicitor is responsible (whether personally or through a servant or agent) the court may after giving the solicitor a reasonable opportunity to be heard;

(a)...

(b) ...

(c) direct the solicitor to indemnify any party other than the client against costs payable by the party indemnified.

No reliance has been placed upon any other part of r 66.

The application for costs within the rule has been based essentially upon the claim that the basis upon which the application for leave to appeal has been made is so wrong and so defective that it is obvious to anybody reading the application that it must fail.

It has been argued from that, as I understand the argument, that, accordingly, it should be inferred that the solicitor was 'responsible' for what has occurred within r 66(1) and that, therefore, the order for costs there referred to should not be made.

There is, in my opinion, a good deal of force in the submission by Mr McGovern, for the respondent to the summons for leave to appeal, that the summons has been brought upon a mistaken or a misstated basis. He has referred to several matters in respect of which it would appear on the face of the matter that there was no ground for the assertions made in the summons.