De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 6) [2016] NSWDC 378

District Court New South Wales

Medium Neutral Citation: De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 6) [2016] NSWDC 378 Hearing dates: 14, 15, 16, 17, 18 and 24 (received references) March 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Order Robert Newell and Leonardo Muriniti to indemnify the applicants against 50% of their costs payable in the proceedings up to the conclusion of the trial on 11 October 2012. (2) Reserve the questions of costs of the application and interest for further submissions on a date to be fixed. Catchwords: COSTS – costs orders against practitioners – presumption that legal services provided without reasonable prospects of success – evidence to displace presumption – who can be beneficiary of costs order – whether costs payable – proportion of costs of proceedings – serious misconduct, serious neglect or serious incompetence – multiple statements of claim – inconsistency between pleadings and particulars – inconsistency between pleadings and evidence – extent of increased costs – voluminous irrelevant evidence – false evidence – inappropriate instructions to experts – unlawful recording of telephone conference – multiple witnesses in joint conferences – failure to produce documents – inappropriate allegations of impropriety – whether appropriate to apportion total costs – assessment of reasonable length of trial – discretion Legislation Cited: Civil Procedure Act 2005, s 56, s 98, s 99 Evidence Act 1995, s 38 Legal Professional Act 2004, s 345, s 348, s 349 Cases Cited: Bendigo and Adelaide Bank Limited v Stamatis [2015] NSWSC 721 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Day v Perisher Blue Pty Ltd [2005] NSWCA 110 De Costi Seafoods (Franchises) Pty Limited & Anor v Wachtenheim and Anor (No 2) [2012] NSWDC 286 De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 3) [2013] NSWDC 54 De Costi Seafoods Franchises Pty Ltd and Anor v Wachtenheim and Anor (No 4) [2014] NSWDC 70 De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 5) [2015] NSWDC 8 Fowler v Toro Constructions Pty Ltd [2008] NSWCA 178 Harris v Villacare Pty Limited [2012] NSWSC 452 Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567 Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWFC 931 Kelly v Jowett (2009) 76 NSWLR 405 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack & Ors (No 2) [2011] NSWSC 1096 Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 Re Eric Donald Glass v Defence Force Retirement and Death Benefits Authority [1992] FCA 558 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Ridehalgh v Horsefield [1994] Ch 205 Roads Corporation v Love [2010] VSC 253 Steindl Nominees v Laghaifar [2003] 2 Qld R 683 Treadwell v Hickey [2010] NSWSC 1119 Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477 Texts Cited: New South Wales Barristers' Rules Revised Professional Conduct and Practice Rules 1995 Category: Costs Parties: De Costi Seafoods (Franchises) Pty Limited (ACN 103 324 812) (first plaintiff/first cross-defendant/applicant on amended notice of motion filed 16 March 2016) De Costi Seafoods (Holdings) Pty Limited (ACN 064 186 410) (second plaintiff/ fifth cross-defendant/applicant on amended notice of motion filed 16 March 2016) Serge Wachtenheim (first defendant/first cross-claimant) Deist Safety Equipment Australia Pty Ltd (ACN 081 763 877) (second defendant/second cross-claimant) Frank Theodore (second cross-defendant/applicant on amended notice of motion filed 16 March 2016) George Costi (fourth cross-defendant/applicant on amended notice of motion filed 16 March 2016) Androulla Costi (seventh cross-defendant/applicant on amended notice of motion filed 16 March 2016) Robert Newell (first respondent to amended notice of motion filed 16 March 2016) Leonardo Muriniti (second respondent to amended notice of motion filed 16 March 2016) Representation: Counsel: Mr S J Stanton with Mr M B Holmes (plaintiffs/first, second, fourth, fifth and seventh cross-defendants/applicants on amended notice of motion filed 16 March 2016) Mr G M Watson SC (first respondent to amended notice of motion filed 16 March 2016) Mr D A Lloyd (second respondent to amended notice of motion filed 16 March 2016)