Background
In underlying real-property proceedings, the self-represented plaintiff filed a further amended notice of motion seeking three forms of relief: to vacate September 2026 hearing dates, to restrain the defendant’s solicitor Wassim Sadek and Sadek Lawyers from continuing to act, and relief concerning a notice to produce.
The hearing-date issue was resolved by consent and the notice-to-produce issue was resolved without a contested determination. In Di Liristi v Yosef (No 2) [2026] NSWSC 925, Pike J dismissed the solicitor-restraint application after a contested hearing. The parties could not agree on the resulting costs orders.
The Court’s Holding
Pike J ordered the plaintiff to pay the ordinary costs of Sadek and Sadek Lawyers incurred through their participation in the motion, with those costs payable forthwith. The solicitors were wholly successful on the only relief directly affecting them—the unsuccessful application to restrain them from acting—and were not parties to the substantive proceedings.
The Court also ordered the plaintiff to pay the defendant’s ordinary costs of the motion, as agreed or assessed. The failed restraint application was the dominant and only contested substantive issue, accounting for substantially all relevant evidence, cross-examination, submissions and hearing time. The consent adjournment and resolved notice-to-produce issues did not warrant a percentage reduction because they caused minimal costs and were not decided on their merits.
Key Takeaways
- Costs ordinarily follow the event on a discrete interlocutory application, even though the wider proceedings continue.
- Courts assess practical significance and work undertaken, rather than simply counting successful components of a motion.
- An issue resolved without a merits hearing will not usually prompt a hypothetical costs determination.
Why It Matters
The decision illustrates that a failed application to restrain an opposing solicitor may carry the full costs consequences of a motion when it is the dominant contested issue. Ancillary matters resolved by consent or agreement will not necessarily dilute that outcome.
It also confirms the distinction between a solicitor joined only for a concluded interlocutory issue, whose costs may be payable immediately, and a party remaining in the substantive litigation, whose costs ordinarily await the proceedings’ conclusion.