AA v PD

Supreme Court of NSW|2023-08-11|Before: Chen J

JUDGMENT EX TEMPORE

This is an application by the plaintiff for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) ('the CPA').

Introduction

On 5 August 2022, I delivered reasons for judgment in these proceedings: [2022] NSWSC 1039.
Subsequently, the plaintiff foreshadowed, and ultimately filed, the current application but its progress has been delayed: initially that was because, at the time of filing the application, the defendant had been declared bankrupt.
On 19 October 2022 the defendant's bankruptcy was annulled. Since that time, the application has been further delayed: the matter has a tortured procedural history. It has been listed for procedural directions on numerous occasions. It is necessary to set out the procedural history: (a) to explain that delay, and the reasons for it (put simply, it is the product of the conduct of the defendant); and (b) to demonstrate that the defendant has been availed of numerous opportunities to contest, if he considered it appropriate to do so, the plaintiff's application: notwithstanding those opportunities, he has not participated - either by the service of evidence, submissions or by appearing at the hearing of the plaintiff's application today.

Background: the procedural history

I will set out the relevant procedural history from around the time of the annulment of the defendant's bankruptcy on 19 October 2022. It is as follows. 1. 11 October 2022: I made orders in Chambers fixing a timetable for the determination of the plaintiff's notice of motion. 2. 26 October 2022: Mr Hall, of Hall Partners Solicitors & Barristers, the defendant's former solicitor, filed a notice of intention to file a notice of ceasing to act. 3. 28 October 2022: the matter was listed before me for directions. Mr Hall appeared via AVL and advised the Court that he no longer acted on behalf of the defendant - instead, Mr Barbeliuk, the defendant's power of attorney, appeared with leave of the Court on behalf of the defendant. Mr Barbeliuk advised that the defendant sought a stay of proceedings on the basis that there were bankruptcy proceedings afoot concerning the defendant in the Federal Circuit and Family Court of Australia. I subsequently made orders staying the orders made on 11 October 2022 and listed the matter for further directions on 21 November 2022. 4. 4 November 2022: Mr Hall filed a notice of ceasing to act. 5. 21 November 2022: the matter came back before me for directions. At this time, Mr Barbeliuk advised that he was currently seeking alternate legal representation for the defendant, Mr Barbeliuk not being a lawyer himself. Given the proximity to the impending Christmas vacation, I subsequently stood the matter over until 3 February 2023 to allow the defendant such time. 6. 3 February 2023: the matter came back before me for directions. At this time, the defendant was represented by a solicitor, Mr McDonald. Mr McDonald advised that he required a short period to review the file. To facilitate this, I stood the matter over to 21 February 2023 for further directions. 7. 7 February 2023: the defendant filed a notice of removal of solicitor - a notice that related to the appointment of Mr McDonald. 8. 20 February 2023: Mr Barbeliuk sent an email to my Chambers at 3:48pm requesting a 7 day adjournment of the directions hearing listed for 21 February 2023 due to circumstances of a personal nature (he advised that he was unwell). By this email, Mr Barbeliuk also forwarded communications which had previously been sent to the plaintiff advising that Mr McDonald no longer acted for the defendant. I granted this adjournment, and relisted the matter for directions on 28 February 2023. 9. 27 February 2023: Mr Barbeliuk sent an email to my Chambers at 5:56pm. Broadly speaking, that email indicated that Mr McDonald no longer acted for the defendant, and notwithstanding that, neither Mr Barbeliuk nor the defendant intended to attend the directions hearing listed for the next day. 10. 28 February 2023: the directions hearing proceeded as listed. Neither the defendant, nor anyone on his behalf, attended. By that time, the defendant had filed a notice of appeal, as well as an application for a stay of the judgment. Given these matters, the matter was subsequently stood over for directions on 24 March 2023, with an indication that, on that occasion, I would fix a timetable leading to a determination of the plaintiff's application for a gross sum costs order. 11. 23 March 2023: at 7:26pm Mr Barbeliuk emailed my Chambers advising that the defendant had experienced a medical emergency and that neither the defendant, nor Mr Barbeliuk would be attending Court for the directions hearing listed on 24 March 2023. 12. 24 March 2023: There was no appearance by or on behalf of the defendant at the directions hearing. At this time, I listed the matter for directions before me on 31 March 2023 with a view to setting a timetable for the plaintiff's application for a gross sum costs order. 13. 31 March 2023: Mr Barbeliuk appeared on behalf of the defendant at the directions hearing. At that time, Mr Barbeliuk advised that counsel - being Mr Fernon SC - had been retained to represent the defendant, but that he was currently on leave and subsequently he sought a further adjournment to allow Mr Fernon SC to be properly briefed in the matter. The matter was subsequently stood over to 17 April 2023. 14. 17 April 2023: Mr Fernon SC appeared for the defendant at the directions hearing. Mr Fernon SC advised that he was instructed to seek an adjournment on the basis that an application had been filed in the Court of Appeal proceedings - an appeal had been filed, on 24 February 2023, in relation to my decision, and two other matters decided against the defendant in the Common Law Division - that a tutor be appointed for the defendant because he was under a legal incapacity. The matter was subsequently stood over for directions on 6 June 2023 to allow time for the defendant's notice of motion seeking a tutor be appointed to be heard by the Court of Appeal. 15. 5 June 2023: at 10:14am Mr Barbeliuk emailed my Chambers advising that the defendant was no longer represented by counsel, and that he would not be appearing on behalf of the defendant at the listed directions hearing on 6 June 2023. 16. 6 June 2023: the directions hearing proceeded. There was no appearance by, or on behalf of, the defendant. The plaintiff advised that the notices of motion filed by the defendant were to be heard in the Court of Appeal on 20 June 2023. Given the impending return date of those motions, I stood the matter over for further directions on 22 June 2023. 17. 20 June 2023: the defendant's notices of motion - seeking the appointment of a tutor - were heard by Griffiths AJA. 18. 21 June 2023: my Chambers emailed the parties to advise that the directions hearing listed for 22 June 2023 would be vacated, with the matter to be relisted on 4 July 2023 to allow time for judgment to be delivered in the notices of motion heard on 20 June 2023. 19. 22 June 2023: Griffiths AJA delivered reasons for judgment, and made an order dismissing the defendant's notices of motion: DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140. 20. 3 July 2023: Mr Barbeliuk advised my Chambers by email at 12:02pm that: (a) the defendant had not yet appointed new legal representation; (b) Mr Barbeliuk was under the impression that I would not grant him leave to appear on behalf of the defendant; (c) the defendant and Mr Barbeliuk were of the view that the directions hearing should not proceed; and (d) regardless of whether the directions hearing proceeded, Mr Barbeliuk would not be appearing on behalf of the defendant. By return email, my Chambers advised Mr Barbeliuk that the directions hearing would proceed as listed with the view to setting a timetable for the plaintiff's application seeking a gross sum costs order and, if Mr Barbeliuk wished to appear on behalf of the defendant, I would grant him leave to do so - consistent with what I had done on all prior occasions. 21. 4 July 2023: the matter was listed for directions. Neither Mr Barbeliuk, nor the defendant, appeared at the directions hearing on 4 July 2023. Consistent with the notice provided to Mr Barbeliuk on behalf of the defendant, I set a timetable for the filing and service of evidence and submissions in relation to the plaintiff's motion seeking a gross sum costs order, leading to a hearing of that application.
In fixing the timetable on 4 July 2023, I (relevantly) directed the plaintiff to advise the defendant of the orders made by 4 July 2023, 5pm. Mr Bailey has advised me today that that occurred. I also caused the Court to send a notice of the orders made to the defendant: JusticeLink records that the orders were issued to the defendant - by mail - at 11:58am on 4 July 2023.
The defendant was required to file and serve an outline of submissions on the plaintiff's application for a gross sum costs order and all evidence which he proposed to rely on by 1 August 2023. The defendant did not file any evidence, nor did he serve an outline of submissions directed to the plaintiff's application for a gross sum costs order.
I do not have any doubt that the defendant is aware of the plaintiff's application, and that it is appropriate to proceed in the circumstances notwithstanding his non-participation and non-attendance.

Legal principles: gross sum costs orders

Section 98 of the CPA grants the Court discretion to award costs. By s 98(4)(c), the Court is entitled to make a gross sum costs order in place of assessed costs: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to - (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount.
The legal principles concerning an order for gross sum costs are well-established. The guiding principle is that the "power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available": Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22]. The relevant principles were summarised in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [14]-[18] ('Ahern') in these terms: 14. The principles relevant to the Court's exercise of discretion under s 98 were set out in Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA) (Hamod). Her Honour noted at [813]: [813] The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]: "The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available." 15. The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod at [816]-[817]. As Basten JA noted in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]: The power to make such an order is governed by the obligation of the court to give effect to the overriding purpose of the Act, as identified in Pt 6 of the Civil Procedure Act. The court is to ensure that the issues between the parties are resolved "in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute" (Civil Procedure Act, s 60); that obligation extends to the disposal of disputes as to costs. Although questions of costs undoubtedly play an important practical role in commercial litigation, disputes as to quantification are ancillary to the primary issues in dispute and consequential upon the resolution of the primary issues. Costs provide an opportunity for ongoing litigation about "non-essential issues" which should be resolved with as little technicality and expense as reasonably practicable. [footnotes omitted] 16. Primary considerations relevant to the exercise of the s 98(4)(c) discretion include "the relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability": Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30]. 17. The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [22]. The power may be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod at [818]. 18. If it considers it appropriate to make the order, the Court may adopt a "broad brush" approach to quantification, as to require the Court to undertake a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be "based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills)": Hamod at [820]. Courts have typically applied a discount when assessing costs on a gross sum basis, though the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court: Hamod at [814].
There are a number of matters that I consider demonstrate that this is an appropriate case for the exercise of the Court's discretion, under s 98(4)(c) of the CPA, to make a gross sum costs order. Those matters include the following. First, it will avoid the cost and expense of the assessment process. In this respect the evidence demonstrates that, in the event that assessment was required, the plaintiff was likely to incur fees payable to a cost consultant of between 7% and 10% of the professional costs claimed in the bill, as well as a filing fee for any costs assessment (Panagoda affidavit, pars 58(a) and (b)). Secondly, given the order for bankruptcy - albeit that it was annulled - and the other judgments entered against the defendant in proceedings for damages brought against him (Lewis v Doyle [2022] NSWSC 92 and PP v DD (No 2) [2021] NSWSC 1312), there remains some doubt about the defendant's capacity to meet his liability, including his liability in costs. Thirdly, in the event that there was a requirement to have the costs assessed, that is likely to cause further delay and it is quite likely - given the procedural delays associated with the current application - for there to be "aggravation" (in the sense described in the authorities, earlier referred to) involved in such process.
In my view the proceedings, and their ultimate finalisation, should not be delayed further: to this end, for the reasons that I have given, I consider that it is appropriate to facilitate the making of a gross sum costs order, and that to do so will reduce delay and costs.

Introduction

The plaintiff, by notice of motion filed on 18 August 2022, seeks two substantive orders: first, a variation of the costs order dated 5 August 2022, so as to be a gross sum costs order (order 1); secondly, an order that the defendant pay the plaintiff's costs of this application on a gross sum basis (order 2).
The plaintiff read, in support of those orders, an affidavit of Maithri Panagoda affirmed 18 August 2022 - Mr Panagoda is a partner at Carroll & O'Dea Lawyers and had day-to-day conduct of the matter on behalf of the plaintiff - and an affidavit of Thomas Felizzi affirmed 7 July 2023 - Mr Felizzi is a senior associate at Carroll & O'Dea Lawyers who assisted Mr Panagoda.

The amounts claimed: a summary

By way of summary, as outlined in the plaintiff's written submissions (par 47), the plaintiff's costs and disbursements claimed are: 1. professional costs (excluding GST): $67,310.00. 2. disbursements (excluding GST): $47,963.63.
These amounts total $115,273.63 (excluding GST). The amount including GST is: $126,800.99.
The plaintiff, as set out in the written submissions (par 48), seeks 70% of the total professional costs incurred (namely, $47,117.00), and between 80% and 100% of the disbursements incurred (namely, $47,963.63). These amounts total $95,080.63 - and, to be clear, is an amount that is exclusive of GST.
In relation to the costs of the notice of motion, the plaintiff's costs and disbursements claimed are $16,162.50 (including GST), $697 for disbursements (including GST) and $8,277.50 (including GST) attributable to counsel's fees. The plaintiff, again, seeks 70% of the total professional costs incurred, and 80% and 100% of the costs incurred for disbursements.

Introduction

Although I have found that the circumstances are such that it is appropriate for the Court to give consideration to the exercise of its discretion to make a gross sum costs order under s 98(4)(c) of the CPA, the power "should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials": Harrison at [22]; Ahern at [17]. I am satisfied as to the existence of both matters.
There is a further matter that should be mentioned. To the extent that the plaintiff sought a variation of the order that I made for costs, I note that the application was filed within 14 days of entry of the orders, as required by r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW); separately, however, s 98(4)(c) of the CPA confers an express power to make a gross sum costs order at any time before costs are referred for assessment: Ahern at [19]-[21]; Amirbeaggi v EB (No 2) [2023] NSWCA 184 at [10]-[12]. Nothing turns on this issue given the plaintiff's notice of motion was filed within 14 days of the entry of the orders.
I turn now to the quantification of the plaintiff's costs. This needs to be an informed assessment so as to permit the Court to make "a logical, fair and reasonable estimate": Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 120 and 124; [1995] FCA 350. In undertaking that assessment, however, the Court applies a "broad brush", mindful that the process is not to take on the characteristics of a formal costs assessment - something that would defeat the purpose of the order: Ahern at [18].
Generally speaking, courts have applied a discount when assessing costs on a gross sum basis: Ahern at [18] and [42]ff. The plaintiff has, as I had earlier noted, applied a discount to the professional costs sought (representing 70% of the total professional costs incurred), and proffered discounting in relation to some of the disbursements - notably, counsel's fees.

The substantive proceedings

Mr Panagoda deposed that the total amount of professional costs and disbursements incurred by Carroll & O'Dea in the proceedings were as follows (Panagoda affidavit, pars 36-47 and annexure C): 1. total costs: $126,436.44 (including GST). 2. Professional costs: $74,041.00 attributable to professional fees (including GST). 3. Disbursements: $52,395.44 (including GST).
Mr Panagoda's evidence was that, based upon his experience, Carroll & O'Dea would typically recover not less than 70% of its professional fees on assessment, and that a party would typically recover between 80% to 100% of counsel's fees, and 100% of other disbursements incurred on assessment: Panagoda affidavit, pars 52-53. I accept that evidence.
On that basis, Mr Panagoda sought 70% recovery of its professional fees inclusive of GST, and 80% recovery of the fees incurred by counsel briefed during the substantive hearing and 100% recovery of all other disbursements incurred during the matter: Panagoda affidavit, pars 54-56.
Mr Panagoda described the activities undertaken, and the costs incurred, in considerable detail in the annexures to his affidavit. I am satisfied that this material enables me to arrive at a conclusion that is logical, fair and reasonable in connection with professional costs and disbursements. He has also annexed all other invoices in connection with the disbursements that are claimed: Panagoda affidavit, annexure B.
The plaintiff's claim for 70% recovery of the professional costs incurred is consistent with authority, and well within an appropriate range that has been endorsed: Ahern at [42]. I propose to allow 70% of the professional costs claimed. To be clear I am satisfied that they are reasonably incurred, and represent reasonable hourly rates charged (being broadly comparable to the Costs Assessments Rules Committee Guidelines ('CARC Guidelines')). I therefore propose to allow 70% of $74,041.00 - being, $51,828.70.
In relation to disbursements, these relate, generally speaking, to counsel's fees as well as other disbursements.
As to counsel's fees, I have reviewed the memorandum issued by counsel for the plaintiff - Mr KW Andrews. Mr Andrews is counsel of considerable experience, particularly in this area of law. His daily, and hourly, rates are entirely reasonable and commensurate with a practitioner of his seniority and standing. The rates are broadly in line with the CARC Guidelines. I am satisfied that they are reasonable, and that the activities - save for one matter - were all reasonably and appropriately undertaken. The only caveat is the fact that the fees covered a third hearing day (which, I add, had been allocated), but the matter completed on the second day. In those circumstances I do not consider that those costs should be recoverable on the "ordinary basis", and I do not allow for the fees rendered for that third day. That adjustment reduces counsel's fees to $31,570.00 inclusive of GST. Otherwise, I accept that, given what I consider and find to be reasonable and proportionate fees rendered, it is appropriate to discount counsel's fees only by 20%, as the plaintiff submitted. That discount remains within the "range" that has been judicially endorsed. I therefore propose to allow 80% of $31,570.00 - being, $25,256.00.
As to the remaining disbursements, they relate to matters such as witness fees, hearing allocation fees, transcription fees and the like. In my view they should be recovered in full, and there is no reason why the plaintiff should not do so. I therefore propose to allow the amount claimed - being, $15,325.44.
By way of summary, I have allowed the following amounts - $51,828.70, $25,256.00 and $15,325.44. They total: $92,410.14.

The notice of motion

Consistent with the purpose of making a claim for a gross sum costs order in the substantive proceedings, the plaintiff also sought an order that any costs payable on the notice of motion be assessed as a gross sum.
In my view, it is appropriate that the plaintiff have his costs of the notice of motion (they form part of the proceedings and to the extent that it might be thought they do not, I specifically order that they do so), and that they be assessed on a gross sum basis. In relation to this assessment, I am satisfied I can assess costs on a gross sum basis fairly and appropriately from the material: Harrison at [22]; Ahern at [17].
In submissions filed 5 July 2023, counsel for the plaintiff indicated that the costs specifically associated with the subject notice of motion totalled: $6,825.00 (excl GST - or $7,507.50 inclusive of GST) for counsel's fees, and $15,000 (excl GST - or $16,500.00 inclusive of GST) for solicitor's professional costs. As to these matters, two matters should be noted: first, those amounts were "stated on the basis that those amounts will be billed to the plaintiff and assuming the matter is determined on the papers" (submissions filed 7 July 2023 at [4]); secondly, these amounts were, as at October 2022, $7,845.00 excluding GST (for the solicitor's professional costs); $1,633.33 excluding GST for counsel's fees; and $667.00 excluding GST for a filing fee (or $733.70 inclusive of GST).
Given the procedural history that I have set out, I do not doubt that the costs of this application are significantly greater than they should have been. None of the delays have been caused by the plaintiff - in any way; it has been entirely attributable to the defendant, as I have sought to explain.
I am satisfied that an assessment can be undertaken that is logical, fair and reasonable.
In relation to counsel's fees, given the procedural history of the application, and the assistance that has been provided by counsel to the court, I am satisfied that those costs (including the rates charged) are fair and reasonable, and the activities were all reasonably and appropriately undertaken. I propose to allow 80% of counsel's fees ($8,277.50 inclusive of GST) consistent with my earlier holding.
In relation to disbursements, they were claimed in the amount of $697.00: this covers the filing fee in relation to the notice of motion ($667.00) and a bankruptcy search ($30.00). I allow them in full.
In relation to professional costs, although, as at October 2022, they were said to be $15,000 (exclusive of GST) they have increased to $16,162.50, as at today. That is the amount that is claimed by the plaintiff. The increasing costs are in my view, by no small means, due to the conduct of the defendant. It is reflected in the plaintiff's solicitors bill of costs - not only for the very many appearances that were required, but also in connection with those appearances, and the notice of motion more generally. In my view, however, it is appropriate to adopt the same rate of discounting for these costs as that which I adopted for the substantive proceedings.
I propose to allow the disbursement for the filing fee and search in full, but otherwise allow 80% of counsel's fees and 70% of the solicitor's professional costs.
By way of summary, I have allowed the following amounts - $6,622.00 (for counsel's fees); $11,313.75 for solicitor's professional costs; and $697.00 (for the filing fee and search). (All amounts are inclusive of GST).

Orders

For the reasons set out above, I make the following orders: 1. Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendant pay the plaintiff's costs of the proceedings, in the gross sum of $92,410.14. 2. Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendant pay the plaintiff's costs of the notice of motion filed 18 August 2022 in the gross sum of $18,632.75.

Amendments 11 August 2023 - Typographical error in order 2. 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: 11 August 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)

Cited By (1)