Solicitors:
Levitt Robinson Solicitors (plaintiff)
Lazarus Legal (second and third defendants)
File Number(s): 2020/179917
[2]
Judgment
The primary issue before the Court is whether it should make a costs order against the solicitor for the plaintiff personally.
The order, which is sought by the second and third defendants, is in the following terms:
4. The costs ordered against the Plaintiff on 2 July 2021 are assessed in the fix sum of $10,000, to be paid forthwith by Stewart Alan Levitt, solicitor for the Plaintiff.
This order was included by the second and third defendants in short minutes of order that were provided by the plaintiff and the second and third defendant to the Court on 15 July 2021, on the basis that the other four orders in the short minutes of order were agreed. The other orders were made by the Court on that date.
The Court received evidence and heard submissions from counsel for the active parties on 15 July 2021.
The proceedings were commenced by statement of claim filed on 17 June 2020. The plaintiffs were the present plaintiff and Ms Teslima Begum, who is the sole shareholder and director of the plaintiff. The first defendant is a company in liquidation. The second defendant is the holding company of the first defendant. The third and fourth defendants are individuals who are alleged to have been involved in the affairs of the first and second defendants. The fifth defendant is an incorporated law practice that is alleged to have acted for the first defendant in relation to the transactions that have given rise to the claim made by the plaintiffs.
An amended statement of claim was filed on 8 March 2021. Ms Begum was removed as second plaintiff and the first defendant was removed as a defendant. The title to the proceedings has from that time been expressed as a proceeding between the plaintiff and the second defendant.
The third and fourth defendants have not been involved in the procedural application to which these reasons relate.
It is sufficient to note that the amended statement of claim seeks damages against the remaining defendants in relation to the circumstances in which the plaintiff entered into and conducted a franchise agreement with the first defendant for the operation of a retail store.
It is accepted by all of the active parties that the plaintiff is impecunious and will not be able to pay any order for the costs of the proceedings that may be made against it in favour of the defendants if the plaintiff is unsuccessful.
On 28 April 2021, the second and third defendants filed a notice of motion in which they sought an order that the plaintiff pay into Court security for their costs of the proceedings in the amount of $250,000.
The solicitor for the second and third defendants made affidavits in support of the notice of motion dated 28 April 2021, 18 June 2021 and 22 June 2021. The solicitor for the plaintiff, Mr Levitt, made affidavits in response dated 9 June 2021 and 22 June 2021.
On 15 June 2021, Ward CJ in Eq fixed the notice of motion to be heard by me on 2 July 2021.
As it was clear that the plaintiff is impecunious, the only issue that the plaintiff could raise in opposition to an appropriate order for security for costs being made in favour of the second and third defendants was that the effect of the making of such an order would be to stultify the proceedings.
In support of that argument, Mr Levitt included the following evidence in his 9 June 2021 affidavit:
18. Teslima Begum (Ms Begum) is the sole director of the Plaintiff, RRZ Pty Ltd and hold (sic) half of the ordinary shares on issue from the Company. Ms Begum has informed me and I verily believe that the Plaintiff has limited financial means.
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21. I am also informed by Ms Begum and I verily believe that she has very limited financial means, as she supports herself and her children by relying upon JobSeeker payments from the Australian Government.
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23. Because of the matters set out in paragraphs 18 to 22 above, I am concerned that if the Court makes an order staying the Proceedings subject to RRZ paying any significant sum by way of security for costs, it will have the effect of preventing RRZ from prosecuting its claims against the Defendants to the Proceedings.
Without the leave of the Court, Mr Levitt made a further affidavit on 1 July 2021, and a solicitor in his employ, Mr Blaise Che Prentice-Davidson made an affidavit on 2 July 2021. Mr Prentice-Davidson's affidavit provided more extensive evidence concerning the financial circumstances of Ms Begum, which was directed at establishing that, although Ms Begum is the party who will benefit from any success of the plaintiff in the litigation, her financial circumstances did not permit her to provide any security for costs on the plaintiff's behalf.
Significantly, Mr Prentice-Davidson's affidavit also contained the following evidence:
11. I am informed by Ms Begum and I verily believe that Ms Begum and [her former husband]:
…
b. were advised by the Third Defendant to incorporate the Plaintiff as part of the steps involved in setting up their franchise business; and
c. relied upon that advice in incorporating the Plaintiff and causing it to enter into a franchise agreement as set out in the Plaintiffs' Amended Statement of Claim field (sic) 8 March 2021.
Although this additional evidence was not elaborate, and was given on information and belief without any supporting documentary evidence, it was potentially significant to the outcome of the application for security for costs. It tended to bolster the claim that an order for security for costs would stultify the proceedings because Ms Begum was in no better position than the plaintiff to provide that security. It also suggested that the risk of stultification flowing from the fact that the plaintiff is a corporation may have been caused by the first defendant, acting through the third defendant, advising Ms Begum and her former husband to enter into the franchise through a newly incorporated company.
For present purposes, the significance of Mr Prentice-Davidson's 2 July 2021 affidavit is that a draft of the affidavit, dated the previous day, was only provided to the legal representatives of the second and third defendants a matter of hours before the commencement of the hearing.
Over opposition from the second and third defendants, the Court gave the plaintiff leave to file the late affidavits in court. The result, however, was that it was necessary, out of fairness to the second and third defendants, to adjourn the hearing of the notice of motion to 15 July 2021. Senior counsel for the second and third defendants reasonably advised the Court that they could not deal with the contents of the affidavit as it had been served so late as to prevent the legal representatives getting proper instructions from their clients.
Apart from adjourning the hearing of the notice of motion, the Court relevantly made the following orders:
2. The Plaintiff is to pay the Second and Third Defendants' costs thrown away by reason of the adjournment of today's hearing, the basis upon which and the persons against whom the order is to be made are to be determined on the next occasion;
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6. The Plaintiff's solicitors are to provide to the other parties and the Court a written explanation of the current position with respect to the proceedings proposed to be brought by other Fogo franchisees for whom they act by 13 July 2021, such explanation to include the proposed constitution of those proceedings, the court or courts in which those proceedings are to be brought, and the likely timing of the commencement of such proceedings;
…
The second and third defendants have sought the order for the payment of costs by Mr Levitt that is set out at the beginning of these reasons in accordance with order 2 made on 2 July 2021.
At this point, I should say something about order 6 made on 2 July 2021.
By the evidence that was available as at that date, the Court learned that the plaintiff was one of a number of former franchisees of the first defendant for whom Mr Levitt acted, and for whom steps had been taken to secure funding from a litigation funder for the purpose of commencing and prosecuting representative proceedings against the present defendants. It had not been possible to commence those proceedings by 2 July 2021, as necessary final decisions had not been made concerning the constitution of the proceedings.
The claim made by the present plaintiff individually, and the claim made by another plaintiff in different proceedings, had been commenced against the defendants in anticipation of the commencement of the representative proceedings, in order to avoid the risk of the individual plaintiffs' claims becoming statute barred.
That being so, the conventional approach of parties in the position of the individual plaintiffs would, in my experience, be to invite the defendants to consent to orders against the plaintiffs staying the proceedings, at least until the position became clear concerning the commencement of the proposed representative proceedings. That course would have obviated the need for the defendants to incur legal costs in response to the individual claims made against them.
The plaintiff did not take that course in this case. The consequence was that the second and third defendants made their application for an order for the provision of security for costs by the plaintiff. Their application was supported by the affidavits to which I have referred above, and the plaintiff responded in kind. Consequently, costs have been incurred unnecessarily in prosecuting and defending a claim for a stay of proceedings pending the provision of security for costs by the plaintiff, when the plaintiff should have offered to submit to a stay of proceedings at the outset.
The potential commencement of the representative proceedings introduced complications into the determination of the application for security for costs. On the one hand, if the Court dismissed the application because it would stultify the plaintiff's claim, that might have the result of encouraging all of the other individual plaintiffs to commence separate proceedings against the defendants, hoping for the same result. The defendants might thereby be oppressed by a multiplicity of proceedings, in circumstances where they might not be able to recover their costs if successful. There was evidence that the litigation funder had agreed to fund the representative proceedings if commenced, but not the costs of individual actions commenced by franchisees. There was some evidence that the litigation funder had agreed to provide security for the costs of the representative proceedings, if that was ordered by the Court. There was a dispute between the parties to the notice of motion as to whether or not the litigation funder would provide security for the present proceedings.
These considerations created the appearance that the notice of motion for security for costs had come on for hearing prematurely. If in fact the representative proceedings were commenced, then the present proceedings might become superfluous, as might the application for security for costs, as the litigation funder would be required to provide on behalf of the plaintiffs security for the costs of the defendants in the representative proceedings.
Hence, for practical reasons, on 2 July 2021 I made order 6 as set out above.
Before the commencement of the adjourned hearing of the notice of motion on 15 July 2021, the Court was provided by the plaintiff with the report required by order 6 and proposed short minutes of order.
In outline, the report advised that Mr Levitt had received instructions to act for 12 different franchisees, including the present plaintiff. It explained that there was an intention to commence new proceedings in this Court that would involve at least two representative plaintiffs, one representing former franchisees and the other representing directors of former franchisees. The report stated that it was intended to commence those proceedings by no later than 20 August 2021. The representative proceedings will be funded by the identified litigation funder. It advised that the plaintiff intended to seek orders that both of the separate proceedings be stayed and consolidated with the representative proceedings, once those proceedings have been commenced.
The report contained the following assertion:
3. As at 2 July 2021 it remained unclear whether or not further Proceedings would ultimately be issued by further former franchisees.
The draft short minutes of order provided by the plaintiff included orders that would have the effect that the proceedings were stayed until further order, on the basis that any notice of motion by the plaintiff seeking the consolidation of these proceedings with the proposed representative proceedings was to be filed and served by no later than 30 August 2021. The hearing of the notice of motion for security for costs would be stood over to a date to be fixed.
The second and third defendants submitted draft short minutes of order that, if made, would have required the plaintiff to provide security for costs in the amount of $250,000, and the proceedings would be stayed until the security was provided. An order was also sought against Mr Levitt in respect of the costs order made on 2 July 2021 in the terms that are set out at the beginning of these reasons.
After some discussion, in which the Court made clear its provisional views, the parties consented to the making of orders that these proceedings be stayed until further order, and that the issue of the second and third defendants' costs thrown away by reason of the timing of the stay of these proceedings be reserved and stood over for directions before me on 31 August 2021. The notice of motion for security for costs was also stood over to that date.
The Court suggested that approach to the parties because it - belatedly - achieved the conventional position of these proceedings being stayed until their relationship to the proposed representative proceedings was known. That was also an appropriate course, because otherwise the dispute that existed between the parties as to the quantum of security for costs that was appropriate would be confused by the uncertainty as to whether these proceedings will continue separately, or whether they will be consolidated with the proposed representative proceedings. It is also possible that the legal costs incurred by the parties to this application for security for costs will be able to be 'repurposed' to some degree for the purpose of determining the amount of the security for costs to be provided in respect of any representative proceedings.
The course that the plaintiff has followed has, unfortunately, created the need for the costs of the notice of motion to be incurred when that would not have been necessary if the plaintiff had offered to submit to a stay of the proceedings in the first place. The determination of that cost issue has been deferred.
It is in all of these circumstances that the second and third defendants have pressed their application for an order that Mr Levitt pay the sum of $10,000 forthwith in performance of order 2 made on 2 July 2021.
Senior counsel for the second and third defendants correctly submitted that his clients' application raised three questions. First, should the Court make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), and if so, should the amount be $10,000 or some other amount? Secondly, should the order be made against Mr Levitt personally? Finally, if the order is made against Mr Levitt, should it be payable forthwith?
Although the plaintiff contested the submission that it is appropriate for the Court to fix the amount of costs in a gross sum in this case, I am satisfied that it is a proper case in which to do so. The amount claimed is not substantial in relative terms, the issue has been presented to the Court simply, and the fact that the plaintiff is impecunious is likely to mean that the second and third defendants will not be able to recover the costs of an assessment, if the plaintiff is required to pay the costs.
The second and third defendants relied upon an affidavit of their solicitor, Mr Mark Lazarus, made on 14 July 2021. Mr Lazarus suggested that the costs of the hearing on 2 July 2021 were wasted, but then said that his clients "will now incur further and unnecessary costs on the Motion, including by:
a. having to prepare responsive submissions to the Plaintiff's late submissions and evidence;
b. counsel for the Second and Third Defendants having to prepare for and appear on the hearing of the Motion for a second time;
c. a solicitor for the Second and Third Defendants having to prepare an amended or supplementary Court Book and having to attend on the hearing of the Motion for a second time; and
d. myself having to attend on the hearing for a second time."
The additional costs deposed to by Mr Lazarus (excluding GST) are $6,500 for senior counsel, $3,375 for junior counsel, $1,800 for six hours work by a solicitor preparing an amended or supplementary court book, and $2,000 for four hours work by Mr Lazarus himself. The total amount calculated by Mr Lazarus is $13,675.
Counsel for the plaintiff submitted that the day that was wasted was 2 July 2021 rather than 15 July 2021. That is a debatable question, but it is unlikely that the costs incurred by the second and third defendants on either day differed greatly. Their senior counsel's argument was that the second day was wasted because, if the plaintiff had served its additional evidence in a timely way, the notice of motion would have been dealt with on 2 July 2021. On balance, I accept that submission.
However, any costs that the second and third defendants may have incurred in responding to late submissions and evidence would not be thrown away, as that legal work would have been required, at least broadly, if the evidence had been served in a timely way.
Further, there should not be any allowance for the costs of preparing an amended or supplementary court book, because no such court book was produced and given to the court on 15 July 2021.
Senior counsel for the second and third defendants acknowledged that the Court is entitled to adopt a broad brush approach and to discount the amount of the claim to reflect the fact that the amount of the costs payable would be determined immediately and obviate the need for the cost and the inconvenience of conducting a costs assessment.
I have decided that the appropriate course is to reduce the amount of $13,675 by the $1,800, which gives $11,875, and then to round that amount down to $11,000 to make an allowance for the unjustified claim for the cost of responding to the late affidavits and submissions. I will then allow 70% of that amount, which gives an amount of $7,700. That approach includes a discount to reflect the costs being payable on the ordinary basis, but also notes that most of the costs are in the form of disbursements consisting of counsels' fees. Given that the notice of motion was filed in the context of the foreshadowed representative proceedings, which gave rise to a contentious question about whether the existence of a litigation funder had a bearing on whether the order for security for costs sought by the second and third defendants should be made, I am satisfied that it was appropriate for those parties to retain senior and junior counsel. I will make an order that gives effect to this calculation.
In respect of the issue as to whether Mr Levitt should be ordered to pay the costs, and if so when the cost should be payable, senior counsel for the second and third defendants made it clear that the application for what is called a 'forthwith' order is justified only if Mr Levitt is ordered to pay the costs personally. The second and third defendants acknowledged that the effect of Uniform Civil Procedure Rules 2005 (NSW) r 42.7 is that, unless the Court orders otherwise, an interlocutory costs order such as order 2 made on 2 July 2021 is not payable until the conclusion of the proceedings. The submission is that, if Mr Levitt is ordered to pay the costs personally, there is no apparent reason why that payment should not be made forthwith and should be deferred until the end of the proceedings.
Consequently, the only real question is whether the Court should make the order against Mr Levitt that is set out at the beginning of these reasons.
The second and third defendants' application is made on the basis of s 99 of the Civil Procedure Act and the Court's inherent jurisdiction over solicitors as officers of the Court.
Section 99 relevantly provides:
(1) This section applies if it appears to the court that costs have been incurred -
(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following -
…
(b) it may, by order, direct the legal practitioner -
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(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,
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Counsel for the plaintiff, who evidently had instructions to represent Mr Levitt, advised the Court in relation to the chapeau to s 99(2) that Mr Levitt considered that he had been given a reasonable opportunity to be heard, and that counsel was ready to deal with the application.
The first matter to note in respect of the application under s 99 is that the effect of subsection (2)(b)(ii) is that the Court can order a solicitor "to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs". The section does not authorise the Court to make an order against Mr Levitt that he personally pay the amount of the costs that has been fixed directly to the second and third defendants: see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [16] and Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209 at [8].
Senior counsel for the second and third defendants suggested, in response to this difficulty, that they would be content with an order that conformed with s 99(2)(b)(ii), but that was a late change of position and was not the application that Mr Levitt had prepared to address.
The second and third defendants pressed their application on the basis of the general power of the Court to make the order sought in the supervisory jurisdiction with respect to legal practitioners admitted by the Court.
They relied upon the following aspects of the judgment of Basten JA (with whom Ward and Emmett JJA agreed) in Re Felicity (footnotes omitted):
[18] The absence of a basis in s 99 for an order that the solicitor pay the opposing parties directly, is not an end of the matter. There is a general power in this Court to make such orders in the supervisory jurisdiction with respect to legal practitioners admitted by the Court. An authoritative basis for that jurisdiction to order costs against a practitioner is to be found in Myers v Elman where Lord Wright explained the basis on which the jurisdiction could be involved in the following terms:
It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. … The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.
[19] The operation of that principle in this State was acknowledged in the Attorney-General v Wylde, and in Lemoto.
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[24] The various phrases used in s 99(1)(a) and (b) do not constitute discrete and independent concepts; nor are they to be treated as terms of art. There is no call to construe "serious misconduct" by reference to the term "unsatisfactory professional conduct", as defined in the Legal Profession Act 2004 (NSW), s 496. The preferable course is that adopted in Ridehalgh v Horsefield, addressing the power of the court to order costs against a solicitor personally where such costs had been incurred by a party "as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative": Supreme Court Act 1981 (UK), s 51(7). Bingham MR (delivering the judgment of the Court including Rose and Waite LJJ) stated:
"'Improper' means what it has been understood to mean in this context for at least half a century. The adjective … covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
'Unreasonable'" … aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.
The term 'negligent' was the most controversial of the three. It was argued that the Act of 1990, in this context as in others, used 'negligent' as a term of art involving the well known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative's duty to his own client, to whom alone a duty is owed. We reject this approach: (1) As already noted, the predecessor of the present Order 62 rule 11 made reference to 'reasonable competence'. That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders. (2) Since the applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.
We cannot regard this as, in practical terms, a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal representative to his client. But for whatever importance it may have, we are clear that 'negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence …
We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.
See also Nadarajapillai v Naderasa (No 2) at [10] where Emmett JA (with whom McColl and Macfarlan JJA agreed) referred to the need to balance carefully two different interests, being the "public interest in maintaining and nurturing a legal profession that provides vigorous representation to litigants in court, uncompromised by a fear of personal sanctions for failure" and the public interest in the efficient administration of justice. Although these authorities focus on the meaning of s 99 of the Civil Procedure Act, I consider that they provide guidance on the degree of delinquency that should be found in the conduct of a legal practitioner to justify an order of the Court in its supervisory jurisdiction that the legal practitioner pay the costs of an opposing party personally. It is instructive that Emmett JA gave the following reason for making an order against the solicitor in that case:
[17] I consider that the conduct of Mr Patel, in instituting and maintaining an appeal that had no prospects of success, and no merit, constituted serious incompetence on his part as a legal practitioner and that costs have been incurred improperly and without reasonable cause, in circumstances for which he is responsible. Mr Patel should bear the costs that the Borrower was ordered to pay to the Lender.
The gravamen of the second and third defendants' argument is the submission that it ought to have been obvious to a competent solicitor in Mr Levitt's position that the evidence that he proffered concerning stultification in his 9 June 2021 affidavit was wholly inadequate, even if admissible, and that the stultification argument would necessarily fail unless the plaintiff provided more substantial and persuasive evidence. That being the case, it was delinquent of Mr Levitt to delay causing more substantial evidence to be served on the second and third defendants, until mere hours before the commencement of the hearing of the notice of motion.
While I am satisfied that the manner in which Mr Levitt conducted the defence to the notice of motion involved serious misjudgments, which included the adequacy of the initial evidence and the delay in serving the improved evidence, I am not satisfied that the conduct of Mr Levitt can properly be categorised as involving "any improper, unreasonable or negligent act or omission on the part" of Mr Levitt, as explained by Basten JA in Re Felicity at [24].
I am satisfied that Mr Levitt caused the plaintiff to commence the present proceedings, even though impecunious, in order to prevent the plaintiff losing the opportunity to vindicate its claims by reason of the lapse of a limitation period. My own view is that Mr Levitt should have advised the plaintiff to offer to submit immediately to a stay of the proceedings pending the commencement of the proposed representative proceedings, but I would not categorise his failure to take that course as being delinquent. Mr Levitt found himself in the position that he had to deal with the security for costs application made by the second and third defendants, and he incurred the costs of doing so in circumstances where he would have been aware that the plaintiff could not meet his costs. Mr Levitt gave evidence in his 9 June 2021 affidavit that he advanced money to the plaintiff from his own funds to avoid ASIC deregistering the plaintiff. The agreement with the litigation funder did not extend to meeting the plaintiff's legal costs, or at least it is Mr Levitt's understanding that it does not do so. Mr Levitt ultimately agreed to retain counsel who appeared on the application for the plaintiff on the basis that he would meet counsel's fees. That was done belatedly, only about a week before the hearing on 2 July 2021, but it should be accepted that Mr Levitt may have been in a quandary as to what he should do, and ultimately Mr Levitt accepted the need to bear the costs of instructing counsel. Counsel gave advice on evidence that led to steps being taken, admittedly at the last minute, that had the result that the further evidence was only available to be served shortly before the commencement of the hearing on 2 July 2021.
While the outcome has been unsatisfactory, and some misjudgments may have been made, the Court should be wary of treating too harshly solicitors who are prepared to act in the cause of impecunious plaintiffs who are seeking redress in respect of substantial losses. Where solicitors in those circumstances are prepared to act without fee, or even as in this case, advance money to their clients to get over immediate difficulties caused by impecuniosity, realism suggests that there may be occasions where misjudgments are made that do not warrant a finding by the Court of delinquency of a magnitude sufficient to visit costs orders on the solicitor personally.
Consequently, the Court will not make order 4, as sought by the second and third defendants, but will make an order quantifying the amount of the costs payable under order 2 made on 2 July 2021.
The Court orders that the amount of the costs payable by the plaintiff to the second and third defendants under order 2 made on 2 July 2021 be fixed in the gross sum of $7,700 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
[3]
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Decision last updated: 20 July 2021