The Court declined to order a solicitor to indemnify successful defendants under s 99(1)(b) of the Civil Procedure Act 2005, holding that although the plaintiff's Trade Practices Act unconscionability claims were unlikely to succeed (particularly on causation of loss), they were not so lacking in merit as to be not fairly arguable at the time they were brought. The Court also held that, as a matter of discretion, a solicitor who acts on the advice of Senior Counsel is entitled to rely on that advice unless it is clearly wrong, and this reliance weighs against making a costs order against the solicitor. The Court confirmed that 'reasonable cause' under s 99(1)(b) may afford more latitude than 'reasonable prospect of success' and that the power must be exercised with considerable caution and not with the benefit of hindsight.
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