Abbatangelo v Aleckson

District Court of NSW|2019-09-06

Solicitors: Hall & Wilcox (Defendant) Slater & Gordon (Respondent to Motion) File Number(s): 2015/240507

Introduction

The defendant sought an order against the respondent, the plaintiff's former solicitor, pursuant to s 99 of the Civil Procedure Act 2005 (NSW). By a judgment delivered on 23 August 2019 I dismissed the defendant's Notice of Motion filed on 27 February 2018 - Abbatangelo v Aleckson [2019] NSWDC 430.
I ordered the defendant to pay the costs of the respondent Donald Stuart Cameron of the Notice of Motion. I granted leave to approach my Associate if there was to be any application for a different costs order.
The respondent did not wish to seek a different costs order. The defendant sought an order that the defendant and the respondent should pay their own costs of the Notice of Motion. The parties agreed that the issue of costs could be dealt with on the papers, after consideration of written submissions.
Counsel for the defendant provided written submissions dated 29 August 2019 (MFI 4). Counsel for the respondent provided written submissions dated 2 September 2019 (MFI 5).

Submissions for the Respondent

Counsel for the respondent submitted that the factors which the defendant pointed to in support of his application for each party to pay their own costs of the motion, were largely the same factors upon which the defendant failed on the hearing of the motion. That is so. Counsel accepts that an additional factor raised by the defendant concerns the subpoena for production issued to the respondent Mr Cameron. I have already dealt with that matter above, unfavourably to the defendant.
Counsel submitted that if the defendant's application for variation failed, then such application was so weak as to warrant an order for indemnity costs on this application. There is some merit in that. When I granted leave to the parties to approach my Associate if either party sought a different costs order, I had in mind that there may have been an Offer of Compromise served. I did not anticipate that, having made no submissions whatsoever on the hearing of the motion about costs of the motion, the defendant would come along and try to belatedly argue that each party should bear their own costs of the motion, even though the defendant lost.
Counsel for the respondent also submitted that, while the respondent did not initially wish to agitate an order for indemnity costs based upon an offer to settle in the sum of $10,000, since that matter was raised by the defendant, it now wished to make an application for indemnity costs based upon that offer.
Until the defendant raised the offer dated 26 July 2019, the court had no knowledge of it. Nor was the respondent seeking a different costs order, based upon that offer. Having opened the gates and dragged that particular wooden horse into the city, the defendant then fought a rear-guard action when the respondent sought to rely upon the offer. This resulted in the defendant having the matter re-listed for further directions, filing further written submissions, filing a 50-page affidavit, and then cancelling the further directions hearing.
I do not think that these parties should be encouraged to litigate this matter any further. I decline to even consider the respondent's application, as it was not one made pursuant to the grant of leave. As tempting as it is to impose indemnity costs of this application upon the defendant, I decline to do so. I do not want to give these parties any opportunity to fall into further dispute.

Conclusion and Orders

My orders are: 1. Dismiss the defendant's application for an order that the defendant and the respondent pay their own costs of the Notice of Motion. 2. Confirm the costs order made on 23 August 2019, that the defendant pay the costs of the respondent Donald Stuart Cameron of the Notice of Motion filed on 27 February 2018. 3. Order the defendant to pay the respondent's costs of this application for a different costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2019

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (1)

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