Metsikas v Quirk (No 2) [2010] NSWSC 757

New South Wales Supreme Court

CITATION : Metsikas v Quirk (No 2) [2010] NSWSC 757

HEARING DATE(S) : 16 March 2010 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 16 March 2010

DECISION : Mr Kalmath's conduct was not so delinquent as to warrant a personal costs order against him. No order as to costs, to the intent that each party bear its own costs of the motion.

CATCHWORDS : PROCEDURE – Costs – Costs orders against legal practitioner

LEGISLATION CITED : (NSW) Legal Profession Act 2004 s 348, s 349

CATEGORY : Consequential orders

CASES CITED : Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284

Stella Metsikas (plaintiff) PARTIES : Wayne John Quirk (first defendant/applicant) Anna Quirk (second defendant/applicant) Asheesh Kalmath (respondent)

FILE NUMBER(S) : SC 09/287884

COUNSEL : Mr G Curtin (for Kathmath Lawyers) Mr R Newell (defendants)

SOLICITORS : Kalmath Lawyers (plaintiff) L C Muriniti & Associates (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Tuesday, 16 March 2010

2009/287884 Stella Metsikas v Wayne John Quirk JUDGMENT (ex tempore)

1 HIS HONOUR: The factual background to the present application is contained in my judgment of 1 February 2010 pursuant to which I granted leave to the plaintiff Stella Metsikas to discontinue the proceedings, and ordered that the plaintiff pay the defendant's costs of the proceedings, but declined to order that those costs be assessed on the indemnity basis. In the course of dealing with that application I accepted that, apart from the question of standing, there were reasonable grounds for instituting proceedings seeking a tracing remedy against the Quirks. However, on the question of standing, I concluded that it could be said that the proceedings were hopeless and doomed to failure from the outset, any such cause of action as Ms Metsikas had against the Quirks of the type in question having accrued to her prior to the date on which she became bankrupt on 4 January 2006, whereupon all her property vested in her trustee in bankruptcy. Such property included any interest which she had in the Quirks' property to which she might be entitled by way of a tracing remedy, and which might otherwise have supported the caveat that she sought to sustain in the substantive proceedings.