Hurcum v Domino's Pizza Australia Pty Limited (No. 2) [2007] NSWDC 74

New South Wales District Court

CITATION: Hurcum v Domino's Pizza Australia Pty Limited (No. 2) [2007] NSWDC 74

HEARING DATE(S): 28/03/07, 20/04/07

JUDGMENT DATE: 2 May 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: Vary order 2 of the judgment of 8 March 2007 to provide that the plaintiff's costs of and incidental to (a) the issue of fraud; (b) the Notice of Motion of 14 June 2006 to vacate the previous hearing date; (c) the costs thrown away by the vacating of the trial which was fixed to commence on 15 June 2006; (d) the retention of Senior Counsel; and (e) the argument in relation to costs on 28 March and 20 April and the written submissions, are to be excluded from the operation of Division 9, Part 3.2 Legal Profession Act 2004 (NSW).

CATCHWORDS: Costs - application to exclude part of hearing costs for unsuccessful defence alleging fraud from the operation of Division 9, Part 3.2 Legal Profession Act 2004

Civil Liability Act 2002 (NSW) LEGISLATION CITED: Legal Profession Act 2004 (NSW), Division 9, Part 3.2, ss338 and 341 Uniform Civil Procedure Act 2005 (NSW)

CASES CITED: Port Stephens Council v Theodorakis (No. 2) [2006] NSWCA 143

PARTIES: Plaintiff: Wayne Walter Hurcum Defendant: Domino's Pizza Australia Pty Limited

FILE NUMBER(S): No. 2705 of 2005

COUNSEL: Plaintiff: G B Hall QC Defendant: J Turnbull

SOLICITORS: Plaintiff: P K Simpson & Co Defendant: Lee & Lyons

Introduction

1. This is an application by the plaintiff for a special order for costs in relation to an unsuccessful plea of fraud in the defence filed in these proceedings. The plaintiff's application is brought pursuant to section 98 Uniform Civil Procedure Act 2005 (NSW) and Order 42 paras 42.1.15 and 42.1.20.