NSW Caselaw
New South Wales Court of Appeal
CITATION: Kendirjian v Ayoub (No 2) [2008] NSWCA 255
HEARING DATE(S): On the papers
JUDGMENT DATE: 15 October 2008
JUDGMENT OF: Beazley JA at 1; McColl JA at 1
(1) As to the order made on 14 August 2008 that the appellant pay the costs of the appeal: DECISION: (a) the appellant is to pay on an indemnity basis the respondent's costs of: (i) preparation for the hearing on 29 October 2007; (ii) the hearing on 29 October 2007; (iii) preparation of her written submissions dated 30 May 2007 and 12 November 2007; (iv) the Notice of Motion dated 20 November 2007; (v) the hearing of the Notice of Motion. (b) Otherwise the appellant is to pay the costs of the appeal on the ordinary basis. (c) As to order (1)(a): (i) J W Conomos of counsel to pay to the appellant 50% of the total costs referred to in that order. (ii) Eugene Lepore, solicitor, to pay to the appellant 50% of the total costs referred to in that order.
CATCHWORDS: LEGAL PRACTITIONERS – delinquency in conduct of appeal – inadequacy of written submissions leading to unacceptable delays and additional work – legal practitioners' serious neglect causes client to breach duty to assist court to discharge overriding purpose of Civil Procedure Act – wasted costs – whether payable on ordinary or indemnity basis – legal practitioners to pay to the client indemnity costs client ordered to pay other party to appeal – Civil Procedure Act 2005 s 56, s 98, s 99 – Supreme Court Rules 1970 Pt 51 r 40, r 46, r 47
Civil Procedure Act 2005 LEGISLATION CITED: Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CATEGORY: Consequential orders
Degmam Pty Ltd (In Liq) v Wright (No 2) (1983) 2 NSWLR 354 FAI General Insurance Co Limited v Burns (1996) 9 ANZ Ins Cas 61-384 Harrison v Schipp [2001] NSWCA 13 CASES CITED: Kendirjian v Ayoub [2008] NSWCA 194 Lake Macquarie City Council v McKellar [2002] NSWCA 90 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Re Smith; Ex-parte Rundle (No 2) [1991] 6 WAR 299 Whyte v Brosch (1998) 45 NSWLR 354
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