A lawyer’s failure to file a notice of ceasing to act was found to amount to “serious neglect, incompetence or misconduct”, but it was not enough to warrant a personal costs order for wasted costs.
While property lawyer and consultant Jason Arraj dodged a personal costs order for his failure to file a notice of ceasing to act, Justice Mark Richmond of the NSW Supreme Court considered his conduct amounted to “serious neglect, incompetence or misconduct”.
In late November 2024, Arraj notified his former clients and the opposing parties’ solicitors that he had ceased to act, and had gone so far as to prepare and sign the document, but did not file it with the court.
The final hearing was set down for late May but was vacated four days before it started on the former client’s application. The court was told they only became aware of the hearing dates the week prior.
Arraj, formerly a solicitor with now wound-up firm Forward Legal, accepted the failure to comply with requirements under the Uniform Civil Procedure Rules 2005 was a “substantial failure”.
He said his failure to do so was due to an administrator being appointed to the firm and the “stress associated with that process”.
Justice Richmond also considered Arraj’s failure to advise his former clients of the outcome of a directions hearing – including the dates that had been set down for a final hearing and what they were required to do – was “serious neglect, incompetence or misconduct”.
While Justice Richmond accepted Arraj’s retainer had been terminated by late November, he was still solicitor on the record and had a duty to both his former clients and the court.
“He was aware from the emails sent via online court that the matter had been set down for hearing in November and he could have easily discovered what the outcome of the directions hearing on that date was by accessing the orders on JusticeLink,” Justice Richmond said.
“It is not an adequate excuse for Arraj to say … that he had ceased acting for the second and third defendants by 26 November 2024 and did not know what orders were made on 28 November 2024.”
However, Justice Richmond was not satisfied that it justified a personal costs order because it did not follow the events “caused the wasted costs resulting from the vacation of the May hearing dates”.
By late November, the former clients accepted they needed to find a new solicitor. They were again drawn to this in December with an email from Arraj’s new firm stating it had the matter file.
Had they taken the “necessary steps” after the email to engage new solicitors or take possession of their files to conduct the matter themselves, “they would have become aware that the proceedings were set down for hearing some five months later”, the judge found.
Even if Arraj’s failure had a causal connection with the wasted costs because of its contribution to the events in May, Justice Richmond said the “independent and unreasonable failure” of the former clients to respond to the retainer termination broke the connection.
The case: Abi-Rizk v BB Dundas Pty Ltd t/as in its capacity as Trustee of the BB Dundas Trust [2025] NSWSC 1063.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
