European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526

New South Wales Supreme Court

CITATION : European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526

HEARING DATE(S) : 27 February 2009, 7 May 2009

JUDGMENT DATE : 12 June 2009

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ

(1) These orders are made on terms that the respondents are to comply with their offer to indemnify the plaintiff from Mr Armstrong's costs, as agreed by the parties or as otherwise assessed, that relate to the plaintiff's application to set aside the judgment of the Local Court; and their offer to set off those costs, as agreed or assessed, against the amount due to the respondents by the plaintiff. DECISION : (2) Liberty to apply with respect to implementation of the terms in Order 1. (3) Save as aforesaid the Notice of Motion of 25 July 2008, now the Further Amended Notice of Motion of 12 December 2008, is dismissed with costs.

CATCHWORDS : LEGAL PRACTITIONERS - wasted costs orders under Legal Practitioners Act 2004 ss 345 and 348 and Civil Procedure Act 2005 s 99 – claim for damages for breach of contract – alleged agreement for Hire Car company to lease and pay for motor car and customer to buy the car and pay costs when she had proceeds of Divorce settlement - customer died without obtaining Divorce settlement and her executor refused to buy the car or pay the costs - claim for damages failed because (1) court did not accept evidence that agreement had been made and (2) if it had been made, condition for completion and payment had not been fulfilled and there was no breach – plaintiff ordered to pay executor's costs on indemnity basis and applied for orders for payment by his solicitors: HELD - no reasonable prospects of success - application refused in exercise of discretion after review of events in litigation and plaintiff's participation in causes of adverse result