Eliezer v The Council of St Andrew's Cathedral School

Eliezer v The Council of St Andrew's Cathedral School - [2021] NSWCA 227 - NSWCA 2021 case summary — Zoe

Judgment

PAYNE JA and STEVENSON J: On 3 August 2021, the Court dismissed with costs the applicants' Amended Summons. [1]
On 8 July 2021, the day before the hearing, the first respondent ("the School") filed a document called "Written Submissions in Relation to Costs" and an affidavit made by the School's solicitor, Ms Vicki Ridge, a partner of Hunt & Hunt.
The submissions included: "This submission is done in the event that the [School] is successful against the Applicant[s] at the hearing on 9 July 2021 both on the Applicants' Notice of Motion filed 5 July 2021 and on their summons for review of decision under s 69 of the Supreme Court Act 1970 (NSW), in order that the Court may consider awarding a lump sum cost order in favour of the [School] pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW)".
The submissions thus foreshadowed an application by the School, were it to be successful, for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
Ms Ridge's affidavit contained an estimate that the costs that the School would incur on the application before this Court, including counsel's fees, would total $10,945.
Ms Ridge proposed a gross sum costs order of $8,756, being the actual estimated costs of $10,945, discounted by 20%.
Necessarily, as the Amended Summons had not then been heard, let alone determined, the School did not in terms apply for such an order. However, the submissions represented a clear notification by the School to the Court and to the applicants that, were the School to be successful, it would seek the particular gross sum costs order foreshadowed.
At the conclusion of the hearing on 9 July 2021, the presiding judge dealt with the matter as follows: "PAYNE JA: Thank you, Ms Eliezer. Finally, there is one matter, Dr O'Shea. The Court proposes to reserve its decision in this matter. We've received an affidavit of Ms Ridge sworn 7 July 2021 and some written submissions about costs were your side to be successful. What are you proposing we do with that? Are you reading the affidavit now? O'SHEA: Yes, I read the affidavit of my instructing solicitor dated 7 July, Ms [Vicki] Colmer Ridge, your Honour. PAYNE JA: Ms Eliezer, do you have any objections to that affidavit? We're not going to deal with this question of costs now. We're going to reserve our decision. If Mr O'Shea's side is successful, he's saying he wants a lump sum costs order and the affidavit is in support of that. Do you have any objection to the affidavit? APPLICANT: Yes, your Honour, because it was sent 24 hours before. I understand the urgency of that but the respondents had taken nearly four years to even file their claim, and now I was given a day's notice of filing all these things. I haven't had a chance to look at that. I'm preparing for today's hearing and not for the costs. I understand their urgency but I'm not in a position to make any submissions, so I don't think I can accept that. PAYNE JA: You've said enough, Ms Eliezer. What we will do then, Mr O'Shea, is if your side is successful, r 36.16 of the UCPR permits an application for further or additional order to be made as long as the motion is received within 14 days. Did you actually file a motion, Mr O'Shea, or not? O'SHEA: No, I just did it as a submission, your Honour, because the proceedings are currently in place and the hearing is going. PAYNE JA: I understand, but it was very late, and Ms Eliezer says she can't deal with it today. So I'm not going to force her to deal with it today. It may well be if there's a motion she'll want to put some evidence of her own on. O'SHEA: If it please the Court. PAYNE JA: The affidavit, you're right, has been filed, but you'll need to move to read that. Ordinarily, if you are successful and the motion is filed under 36.16, the Court makes directions to deal with such matters on the papers so there's no additional costs, or there should be no additional costs, save that Ms Eliezer might want to put some written submissions and evidence of her own forward, all of which will only occur obviously if your side is successful. The Court thanks Ms Eliezer and you, Mr O'Shea, for your written and oral submissions. We will reserve our decision. The Court will now adjourn."
The Court's order that the Amended Summons be dismissed with costs was entered on 3 August 2021.
On 3 August 2021, the Court also made these directions: "2. Direct the applicant to file and serve any evidence or submissions (limited to 10 pages) in reply to the respondent's application for a gross sum costs order within 10 business days. 3. The Court will decide this matter on the papers."
Ms Eliezer filed and served submissions on 17 August 2021. In those submissions, Ms Eliezer pointed to the fact that, notwithstanding Payne JA's observations, the School had not filed a notice of motion seeking the gross sum costs order. Ms Eliezer submitted: "On the basis of the above, it would seem that there is no valid application for gross sum costs order before the court which would mean that the court is not empowered to grant the order sought."
Ms Eliezer referred to the observations of Leeming LA in Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2] and continued: "7. In Riva paragraph 59 and 61 the court said that an application for gross sum costs assessment is an application to set aside or vary an existing costs order. It does not involve a new order. 8. Such an application is governed by UCPR 36.16 which requires that applications to vary an existing order must be made within 14 days. If the time limit is not complied with then an application must be made under UCPR 14 to dispense with the rule. 9. That is, an application to vary a cost order is only relevant after a cost order has been made. But, in this case, the First Respondent made their application, by forwarding a submission and affidavit to the court, one day before the hearing! 10. That is, they made an application to vary a cost order before even the court had made such an order which is absurd, farcical and plainly wrong. The First Respondent would not have taken such liberties if the applicant were not self-represented."
Thus, Ms Eliezer's submission was that: 1. where, as here, an order for costs has been made, an application that such costs be specified as a gross sum under s 98(4)(c) of the Civil Procedure Act is an application to "set aside or vary" the anterior costs order; 2. such an application falls to be determined under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.16(3A) and may not be entertained unless made by notice of motion filed within 14 days after the order is entered; and 3. as the School had filed no motion, the Court has no jurisdiction to make the order sought.
Evidently, in response to Ms Eliezer's submissions, the School filed a Notice of Motion on 24 August 2021 (outside the 14 day period referred to in UCPR r 36.16(3A)). This Notice of Motion sought orders "under rule 36.16 of the UCPR" that the Court make "a variation of the judgment" given on 3 August 2021 by "adding in" a paragraph at the end of the judgment to the effect of the gross sum costs order sought. The motion was inapt, in that the power under UCPR r 36.16 is, relevantly, to "vary a judgment or order", not to vary reasons for judgment. The motion also sought to invoke UCPR rr 36.15 and 36.17, which have no application here. [3]
UCPR r 36.16, to which Ms Eliezer referred, is in the following terms: (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if - (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
We are satisfied that, contrary to Mr Eliezer's submissions, the Court does have jurisdiction to deal with the School's application.
Differing views have been expressed as to whether an application for a particular order concerning costs, such as a gross sum costs order, represents an application to "set aside or vary" the original costs order so as to enliven the requirements of UCPR r 36.16. Leeming JA has expressed the view that an application for a gross sum costs order is an application to "set aside or vary" the original costs order: Riva. [4] Recently, White JA expressed the opinion that a like application [5] is not: Livers v Legal Services Commissioner (No 2). [6] Whilst there is much to be said in favour of the view expressed by White JA that UCPR r 36.16(3A) is not applicable in this case, as this application can be determined without resolving the differences in the authorities and in the absence of any argument by the parties which addressed these issues, we have concluded that resolution of this issue should await a case where it is necessary to decide it.
Differing views have also been expressed as to whether, assuming such an application is an application to "set aside or vary" the original costs order, it may be dealt with under UCPR r 36.16(3) (which has a no requirement that a notice of motion be filed) rather than under UCPR r 36.16(3A) (which requires that a notice of motion be filed within 14 days of the order being entered). [7]
It is not necessary for us to express a view about these matters here. Neither Ms Eliezer nor the School has made submissions on the points. In any event, assuming that the School's application for a gross sum costs order falls to be determined under UCPR r 36.16(3A), the Court has power under s 14 of the Civil Procedure Act [8] to dispense with the requirement that the application be made by motion filed within 14 days after the order was entered, provided that: 1. the application has been notified, even if informally, within the 14 day period; [9] and 2. it is "appropriate to do so" for the purposes of s 14 of the Civil Procedure Act.
In this case, the School foreshadowed, prior to the hearing that, if it were to be successful, it would seek a gross sum costs order. It provided submissions explaining the basis upon which such an order would be sought.
Even on the slightly stricter view of Meagher JA in Aukuso v Tahan (No 2), there was an informal application for the relevant order made to the Court within the prescribed time. The School notified the Court, and the applicants, of its intention to seek a gross sum costs order prior to the expiry, indeed prior to the commencement of, the 14 day period referred to in UCPR r 36.16(3A).
Further, notwithstanding the remarks made by Payne JA at the conclusion of the hearing, the directions made by the Court on 3 August 2021, which reflected the reasons of the Court, [10] were made on the basis that the School's application for a gross sum costs order was before the Court.
In those circumstances, we find that this is a case where it is appropriate to order that any requirement that the School file and serve a notice of motion seeking the gross sum costs order that it foreshadowed on 8 July 2021 be dispensed with.
As the School's application was notified before the 14 day period referred to in UCPR r 36.16(3A) had elapsed, the more difficult question [11] of whether s 14 of the Civil Procedure Act permits the Court to extend that period does not arise. In these circumstances, the fact that the School ultimately filed a notice of motion beyond the 14 day period is not determinative.
Turning to the substance of the School's application, Ms Ridge's affidavit annexed the costs disclosure agreements made between her firm, Hunt & Hunt, and the School, and between Hunt & Hunt and the School's counsel, Dr O'Shea. The affidavit contained a detailed estimate of the costs that Ms Ridge anticipated the School would incur in resisting the Amended Summons. Ms Ridge itemised that estimate by reference to the various steps that she expected would be required and by reference to fees already paid to Dr O'Shea and anticipated in relation to the 9 July 2021 hearing.
Although Ms Eliezer criticised Ms Ridge's evidence as "bare assertion", it appears to us to be a careful and detailed estimate of the School's likely costs and to provide a basis upon which the Court can have "confidence in arriving at an appropriate sum on the materials available", [12] that is "fair, logical and reasonable". [13] The School's estimated costs do not appear to us to be unreasonable.
A factor relevant to whether a gross sum costs order should be made is the "degree of any disproportion between the issue litigated and the costs claimed". [14]
Here, the amount in dispute in the Local Court, the District Court and now this Court, was $18,212.88. The School's estimated costs of $10,945, which will be increased if the School is obliged to have its costs assessed, represent a high proportion of that disputed amount.
In those circumstances, we find this to be an appropriate case to make a gross sum costs order.
Applying the "broad brush" approach that is called for on applications such as this, [15] we would assess the School's costs at the figure proposed by the School, $8,756, being 20% less than its actual estimated costs. This figure appears to us to be reasonable. The School will have incurred further costs dealing with the present application since delivery of judgment.
We propose that the Court order, pursuant to s 98(4)(c) of the Civil Procedure Act, that the costs of the first respondent be specified as a gross sum of $8,756.
In her submissions made pursuant to the Court's direction of 3 August 2021, Ms Eliezer foreshadowed an application for a "stay of the principal judgment and of any further orders the Court may make in favour of the [School] to enable [the] applicants to file [an application for] special leave to appeal in the High Court".
Ms Eliezer advanced no reasons why a stay should be granted. As the Amended Summons has been dismissed, there is nothing to be stayed, apart from the costs order we have made. We see no basis on which a stay of that order should be granted. We propose that the application for a stay be refused.
WHITE JA: I agree with Payne JA and Stevenson J that this Court should make a gross sum costs order as sought by the School.
The question of principle raised by Ms Eliezer is whether it is open to this Court to make a gross sum costs order where the School had not filed a notice of motion seeking such an order within 14 days after this Court ordered that the amended summons be dismissed with costs.
I agree with the reasons of Payne JA and Stevenson J that because the School had foreshadowed seeking an order for a gross sum costs order and the Court gave directions for submissions on that question, pursuant to s 14 of the Civil Procedure Act 2005 (NSW) the Court can dispense with the requirement of a filing of a notice of motion under r 36.16(3A), if that rule is applicable.
I would not make an order under s 14 dispensing with the requirement for the filing of a notice of motion under r 36.16(3A) because I do not consider the rule to be applicable.
Rule 36.16 is set out in the reasons of Payne JA and Stevenson J.
In Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327, Leeming JA (sitting as a single Judge of Appeal) said that an application for a gross sum costs order is an application to "set aside or vary" the original costs order (at [59]-[62]).
Depending on the costs order made, that may or may not be the case. In Short v Crawley (No 45) [2013] NSWSC 1541 I held that the application for a gross sum costs order in that case was an application to vary the previous costs order (at [27]). But that was because the original order was for the payment of costs as assessed or agreed (at [2]).
I nonetheless held that notwithstanding that the application for a gross sum costs order was made years after the original costs order, it was not barred by r 36.16(3C).
Rules 36.16(3A)-(3C) were introduced after the change of procedures for the entering of orders by the Court. Prior to amendments in 2007, orders were entered in the Registry. Rule 36.16(3A)-(3C) was introduced following the change to the procedure for the entering of orders whereby orders were entered by the Court itself on its computerised record. Rules 36.16(3A)-(3C) provided a limited opportunity to ameliorate the principle that, subject to only limited qualifications, an order finally disposing of proceedings, once entered, could not be reopened (Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 at [8]-[16]; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2) [2008] NSWCA 205 at [6]-[8]).
The time limitation in r 36.16(3A)-(3C) does not apply to an application to set aside or vary an order under r 36.16(3) or (4). Those rules pre-dated the introduction of r 36.16(3A)-(3C) and were not changed when r 36.16(3A)-(3C) were introduced.
If the application for a gross sum costs order were an application to vary the order for costs made on 3 August 2021, for the reasons I gave in Short v Crawley (No 45), the application could be made under r 36.16(3) (because the Court has not determined that application) (at [16]-[17]) or under r 36.16(4) that includes the power to make supplemental orders for the purpose of dealing with the matter involved in the working out of the order (at [19]).
But in my view the application for a gross sum costs order does not seek to vary the order of 3 August 2021. Accordingly, r 36.16 is inapplicable. The question is rather whether the application for a gross sum costs order offends the principle of finality of judgments. For the reasons I gave in Short v Crawley (No 45) in my view it does not. Although the order of 3 August 2021 is a final order, s 98(3) of the Civil Procedure Act 2005 (NSW) provides a statutory qualification to the rule as to finality of judgments to permit the making of an order "as to costs" after the conclusion of proceedings.
As Parker J observed in Tjiong v Tjiong (No 2) [2018] NSWSC 1981 at [145], it is clear that a gross sum costs order would be an order "as to costs" within the meaning of s 98(3).
For these reasons, I would not make an order dispensing with the operation of r 36.16(3A). It is appropriate to make an order dispensing with the requirement for the filing of a notice of motion as proposed by Payne JA and Stevenson J because a notice of motion for a gross sum costs order is otherwise required under r 18.1, irrespective of the operation of r 36.16.
For these reasons I agree with the orders proposed by Payne JA and Stevenson J.

[4]

Endnotes

Eliezer v The Council of St Andrew's Cathedral School [2021] NSWCA 144.
[2018] NSWCA 327.
UCPR r 36.15 is concerned with setting aside orders given and entered irregularly, illegally or against good faith, and setting aside orders by consent; UCPR r 36.17 is concerned with correcting errors arising from an accidental slip or omission in a judgment or order.
At [59] - [62].
That costs be paid from an identified public fund.
[2021] NSWCA 164 at [5] to [7].
See Livers v Legal Services Commissioner (No 2) at [6] (White JA, repeating the views his Honour expressed in Short v Crawley (No 45) [2013] NSWSC 1541 at [16] and [17]; cf Rodi v Gelonesi [2016] NSWCA 348 at [33] - [36] (Payne JA; Meagher JA agreeing, Gleeson JA assuming without deciding UCPR r 36.16(3) was available).
Which provides: "In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case."
Aukuso v Tahan (No 2) [2018] NSWCA 302 at [45] (Simpson AJA; Macfarlan JA agreeing); Meagher JA expressed a slightly stricter view that the application must be made, albeit informally, within the 14 day period: at [4] and [5]; see also Boateng v Dharamdas [2019] NSWCA 233 at [23] (Macfarlan JA, Gleeson JA agreeing) and at [72] and [73] (White JA); Foundas v Arambatzis (No 2) [2020] NSWCA 51 at [4] (Bell P, Basten and White JJA) and Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98 at [37] (White JA, Basten and Macfarlan JJA relevantly agreeing).
At [120].
For example, Aukuso v Tahan (No 2) at [49] (Simpson AJA).
Hamod v State of New South Wales [2011] NSWCA 375 at [813] (Beazley JA citing Giles JA in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, Giles and Whealy JJA agreeing).
Ibid at [815].
Ibid at [816].
For example, Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 at [14] (Beazley P; Meagher and Payne JJA). 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: 21 September 2021

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