Haigh & Anor v Haddad & Anor

Evidence

1. The defendants relied on two affidavits of Bruce Cantrill sworn on 27 September 2024 and 1 October 2024 respectively.
2. The plaintiffs relied on no evidence on the notice of motion.
3. The affidavits of Mr Cantrill disclose that he is a Special Counsel at the Crown Solicitor's Office ("CSO") and has been the solicitor with the daily conduct of the matter since 2020. The CSO was retained to appear on behalf of all defendants.
4. Mr Cantrill was admitted to practice in 1984 and has been primarily engaged in civil litigation since 1987. He has worked at the CSO since 1989, almost exclusively engaged in defending government clients against claims for monetary damages. As part of his practice, he has assessed claims for costs by successful parties, sometimes with the assistance of professional costs experts when significant sums were involved. He has extensive experience in claiming costs on behalf of his clients.
5. During the life of the present matter, Mr Cantrill has worked with the assistance of more junior solicitors and paralegals from time to time. His charge out rate was $460.20 per hour. Other solicitors who worked on the matter were charged out at $265.20 per hour and $344.20 per hour. Paralegals were charged out at $145.20 per hour.
6. Ms Thomas of counsel was briefed by the CSO to advise and appear in the matter generally in December 2020, including to advise as to the prospects of an application for summary dismissal of the proceedings, or in the alternative for an order striking out the Statement of Claim. Ms Thomas was recently appointed senior counsel, but at the time of these proceedings, she was junior counsel. She appeared with a junior, Ms Love, at the proceedings before Harrison AsJ, but alone before me. Ms Thomas's daily rate was $2175 and her hourly rate $295. Ms Love's daily rate was $1200 and her hourly rate $160.
7. Mr Cantrill deposes to the extensive work that was done on the file. He says, and I accept, that the issues raised by the defendants' notice of motion seeking summary dismissal or a strike out were complex, and involved a review of a complex factual substratum including claims brought by companies controlled by the plaintiffs in earlier proceedings, the extent of the overlap between those earlier proceedings and the instant proceedings, the principles relating to abuse of process and their application to the plaintiffs' claims, the principles of reflective loss and whether they applied to the plaintiffs' claims, the application of limitation periods to the causes of action pleaded by the plaintiffs, the plaintiffs' suggestion that there was evidence of fraudulent concealment and whether any reasonable cause of action was disclosed by the Statement of Claim. The first plaintiff sought damages in the amount of approximately $15,000,000 and the second plaintiff sought approximately $12,500,000 in damages.
8. A substantial amount of time was spent by counsel and solicitors reviewing lengthy affidavits filed by the plaintiffs and a voluminous exhibit to Mr Haigh's first affidavit. Objections to the plaintiffs' evidence took up the majority of the first day before Harrison AsJ, who largely upheld the defendants' objections. Mr Cantrill states, and I accept, that the volume of objectionable evidence tendered by the plaintiffs before Harrison AsJ unnecessarily added to the costs incurred by both parties.
9. Much work was attended to in preparation for the plaintiffs' appeal before me. A court book was prepared which was 1684 pages in length. Some twenty grounds of appeal were raised by the plaintiffs, which put in issue all of the findings of Harrison AsJ. Mr Cantrill states, and I accept, that the work involved in considering and responding to the plaintiffs' submissions on appeal was at least as substantial as it had been at first instance. As the plaintiffs' further affidavit evidence was less extensive, less time was taken up with objections to evidence (almost all of which were ultimately upheld).
10. Mr Cantrill annexes to his September affidavit 149 pages of invoices issued by the CSO on behalf of the defendants for professional fees and disbursements incurred by the defendants from 17 December 2020 to 24 August 2024. He states, and I accept, that CSO charge out rates are substantially less than rates charged by private firms of solicitors. In addition, the CSO applies a volume discount ranging from 2% to 5% on total fees invoiced for a particular period from time to time. The discount is disclosed on the invoice. Likewise, invoices for disbursements are included in the invoices issued by the CSO.
11. The costs of the proceedings including the hearing before Harrison AsJ up until her Honour's judgment are said to be $79,775.63. These are the reserved costs. This sum or its reasonableness is not disputed by the plaintiffs.
12. The costs of preparation up to the hearing of the defendants' notice of motion of 28 May 2021 and of the proceedings including the hearing before me up to the handing down of my judgment are said to be $154,556.20. This sum or its reasonableness is not disputed by the plaintiffs.
13. Mr Cantrill annexes two documents to his affidavits: a copy of Guideline Costs Payable Between Parties Under Court Orders issued by the Costs Assessment Rules Committee on 16 March 2016 and a copy of Guideline Costs Payable Between Parties Under Court Orders issued by the Costs Assessment Rules Committee on 24 October 2023. It is not in dispute that those publications disclose that when the Crown is a party to court proceedings and the CSO appears on the record, on an assessment of costs no discount of the CSO rates for solicitors and counsel is applied as those rates fall within the lower range of the costs guidelines referred to above.
14. In Mr Cantrill's considerable experience, where there is an assessment of costs that have been awarded in favour of the Crown on a party/party basis, it will usually recover approximately 75%-80% of solicitors' costs, 90%-100% of counsel's fees and 100% of disbursements (such as filing fees and printing and scanning costs).
15. For the purposes of estimating the defendants' party/party costs, Mr Cantrill has applied a reduction of 20% to solicitors' fees and a reduction of 10% to counsel's fees. He does not apply any reduction to disbursements. On that basis he believes that the party/party costs recoverable for the 28 May 2021 motion (the costs reserved by Harrison AsJ on 21 October 2022) are $67,905.22 and $128,076.68 for the other costs of the proceedings (including the costs of the hearing before me). That totals $195,981.90. This sum or its reasonableness is not disputed by the plaintiffs.
16. Applying a discount, the defendants seek a gross sum costs order in the sum of $160,000 for the costs incurred in connection with their notice of motion dated 28 May 2021 (the costs reserved by Harrison AsJ on 21 October 2022) and the other costs incurred in connection with the substantive proceedings, including the costs of the hearing before me.
17. Mr Cantrill estimates that the costs incurred for the preparation for this application for the gross sum costs order are as follows:- 1. Costs of preparation of the motion and his primary affidavit - $25,000; 2. Counsel fees: - $5000; 3. Disbursements: - $600; 4. Estimated costs of further preparation and hearing of the motion (which did not occur): - $6000; and 5. Estimated counsel's fees for further preparation and hearing of the motion (which did not occur): - $5000.
18. I accept, and it is not in dispute, that the estimated costs of the CSO for the hearing of this motion, leaving to one side the costs associated only with the hearing of the matter which did not occur, are $30,600.
19. Mr Cantrill states that he has commissioned real property searches for any title in land held by the plaintiffs. He states, and it is not in dispute, that neither plaintiff holds property solely in their own name in New South Wales, Victoria, Queensland or the Australian Capital Territory. Further, the first plaintiff is not a shareholder or office holder in any company. The second plaintiff is the sole office holder and shareholder in James Kikiras (Super) Pty Limited and Kikiras Real Estate Pty Limited, and neither company owns any real property.
20. I observe that the matter occupied two full days of hearing before Harrison AsJ. The matter occupied three full days of hearing before me.

Legislative Background

1. Section 98 of the CPA provides:- 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. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (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. (5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996. (6) In this section, costs include - (a) the costs of the administration of any estate or trust, and (b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and (c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.
2. UCPR r 42.7 provides:- 42.7 Interlocutory applications and reserved costs (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including - (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

The Defendants' Submissions

1. The defendants submitted that the plaintiffs ought to pay the costs reserved by Harrison AsJ on 21 October 2022 and the other costs of the proceedings including the hearing before me fixed in the sum of $160,000.
2. As to the costs reserved by Harrison AsJ, it was submitted that pursuant to UCPR r 42.7, unless the Court orders otherwise, the reserved costs are to be dealt with in the same way as the general costs of the proceedings, which the plaintiffs have been ordered to pay. They submitted that there is no reason why the Court should order otherwise and that the fact that the Court is dealing with an appeal from a decision of the Associate Judge does not provide a sufficient reason, given that the defendants were wholly successful in the appeal. Neither does the outcome of the proceedings before Harrison AsJ provide a sufficient reason, given the significant success of the defendants in those proceedings.
3. In the defendants' submission, as the proceedings have now been dismissed, it is appropriate to allocate the costs of the interlocutory application determined by Harrison AsJ, which should reflect the overall outcome of the proceedings. Thus the plaintiffs should be ordered to pay the costs reserved by Harrison AsJ.
4. The defendants submitted that an assessment of costs would be protracted and expensive. The proceedings were commenced on 28 October 2020. Since that date there have been two hearings totaling five days, both of which involved the preparation of significant affidavit evidence and lengthy written (and oral) submissions. Thus in the defendants' submission, a costs assessment is unlikely to be straightforward and would be costly.
5. In the defendants' submission, the plaintiffs are likely unable to meet a costs liability, as the evidence suggests that the plaintiffs' capacity to meet such a costs liability in the proceedings is doubtful. I observe that the plaintiffs have not put on any evidence as to their financial means.
6. The defendants submit that the Court can be confident in arriving at an appropriate and fair sum for costs. There is ample evidence, they submit, on which the Court can confidently arrive at a fair and appropriate costs order. That evidence includes the details of the defendants' solicitors who worked on the matter, the work they undertook, their seniority and charge out rates, the nature and amount of disbursements incurred, details of the counsel who were briefed and the work they undertook and their seniority and rates. All invoices issued by the defendants are in evidence.
7. Significant legal work was undertaken. It included accessing and reviewing court files in previous proceedings, considering affidavit evidence served by the plaintiffs and preparing evidence, submissions, court books and appeal books. Junior solicitors were appropriately involved in this work. The defendants' rates fall within the lower range of applicable costs guidelines. The rates charged by counsel briefed by the defendants was substantially below what those counsel might charge for private matters. It was submitted that overall, the Court would be satisfied that the defendants' costs are entirely proportionate to the work required and the nature and complexity of the factual and legal issues involved.
8. Mr Cantrill, an experienced disputes practitioner at the CSO, has estimated that the defendants' assessed costs would be in the range of $196,000, not including the costs associated with the application for the gross sum costs order. The defendants seek an order for costs, fixed at $160,000, which represents a further substantial discount to the estimated costs assessed on a party/party basis.
9. The defendants submit that the fact that I did not determine the defendants' initial application for summary dismissal and/or strike out is not an impediment to the orders sought by the defendant: see for example BCEG International (Australia) Pty Ltd v Xiao [2024] NSWSC 922, where McGrath J made an order pursuant to s 98(4) in complex and lengthy proceedings involving interlocutory proceedings before Stevenson J, Williams J and a trial before Rees J. The appeal was a rehearing of the original application, the evidence admitted in the hearing before Harrison AsJ was evidence in the appeal and the grounds of appeal and cross-appeal raised every issue that was the subject of argument before Harrison AsJ. It was submitted that my familiarity with those issues and that evidence enables me to undertake a realistic and fair assessment, on the "broad brush" approach required, of an appropriate gross sum costs order, including the costs of the application determined by Harrison AsJ.
10. As to unnecessary costs, the defendants submit that the conduct of the proceedings by the plaintiffs (who were legally represented throughout), contributed unnecessarily to the costs incurred. The evidence read and tendered by the plaintiffs at the hearing before Harrison AsJ extended to nearly 450 pages. Very few of the documents contained in a lengthy exhibit were referred to in submissions. The defendants objected to much of the affidavit evidence. Those objections, which were for the most part upheld, took up most of the first day of the hearing. A 25-page forensic accountant's report was served and included in the court book before Harrison AsJ, but not read or relied upon by the plaintiffs at the hearing. On the appeal, the plaintiffs read further evidence which was sought to be admitted as fresh evidence, most of which consisted of inadmissible submissions which were subject to objection and most of which were upheld. The plaintiffs advanced a great many grounds of appeal which were not separately addressed in written or oral submissions. It is submitted that all of these matters unnecessarily contributed to the costs which were incurred.
11. The defendants submit that this is a case that "cries out to be finalised": Wallis v Rudek [2020] NSWSC 1618 per Kunc J at [27]. They submit that the Court can be confident, on the evidence, that it is able to arrive at an appropriate sum, using an approach that is fair, logical and reasonable. The defendants submit that the Court can be comfortably satisfied that an appropriate sum for the defendants' costs for the proceedings, including the costs of their notice of motion dated 20 September 2024 (constituting a further discount) is $160,000. They submit that the defendants' costs should be fixed at that sum.

The Plaintiffs' Submissions

1. So far as the reserved costs are concerned, the plaintiffs submitted that the defendants failed in their primary case before Harrison AsJ for summary dismissal, and that the plaintiffs were successful in arguing that leave to replead should be granted to the second defendant with respect to his personal injury claim. Thus, in their submission a reasonable proportionate basis of success and failure on both sides is 50%. They make an open offer to the defendants that the first plaintiff pay the defendants' costs of the proceedings against him before Harrison AsJ, and that the defendants pay the second plaintiff's costs of the proceedings against him before Harrison AsJ (which offer is expressly rejected by the defendants).
2. The plaintiffs further submitted that the orders that ought to made about reserved costs should properly be made by Harrison AsJ, because the issue of costs is discretionary and her Honour may well have had sound reasons, not fully disclosed in her Reasons for Judgment, for striking out rather than dismissing the plaintiffs' claims. I observe that her Honour gave only very limited leave to replead a discrete aspect of the second plaintiff's claim.
3. Further, the plaintiffs submitted that there were many "triable issues" before her Honour which might be considered in the exercise of her discretion on costs. The plaintiffs set out a schedule of "triable issues", which was before her Honour, over more than five pages of submissions.

The Defendants' Submissions in Reply

1. The defendants distill the plaintiffs' submissions as follows. First, having regard to the result of the hearing before Harrison AsJ, the discretion as to costs should be exercised by making the orders set out in the offer contained in the plaintiffs' submissions, or second, the question of costs should be remitted back to Harrison AsJ.
2. As to the argument based on the result of the hearing before Harrison AsJ, the defendants submit that the plaintiffs have mischaracterised the outcome of the application determined by her Honour. The defendants were successful in having the whole of this statement of claim struck out which was an order sought in their notice of motion and opposed by the plaintiffs. The fact that very limited leave to replead was granted to one of the plaintiffs cannot be regarded as a favourable outcome even for that plaintiff. In any event, the defendants submit that the second plaintiff never availed himself of that opportunity and decided instead to join in the first plaintiff's appeal from all of her Honour's orders.
3. The defendants submit that the plaintiffs' argument ignores the effect of UCPR r 42.7, which is not addressed in the plaintiffs' submissions. Had the result of the application determined by Harrison AsJ warranted a costs order that was different to the one that would be made in respect of the general costs of the proceedings, it would be expected that her Honour would have made it. It is far more likely that her Honour would have considered that the costs of the application that she decided should be recoverable as the costs of the successful party in the proceedings, unless the course of the proceedings after that application was decided warranted a different order, which in the defendants' submission it did not.
4. As to whether or not the matter should be referred back to her Honour, the defendants submit that it is entirely appropriate and just that the costs of the application before her Honour be determined now, as I am in as good a position as she is to make the determination. The appeal, which was commenced by the plaintiffs' amended notice of motion dated 9 December 2022, was a rehearing of that application. All affidavit evidence and exhibits admitted by Harrison AsJ were included in the court book for the appeal, as was the transcript of the argument before her Honour and the parties' written submissions. Her Honour's reasons were the subject of detailed argument in the appeal. The suggestion that there may be some reasoning not included in her Honour's reasons for decision handed down more than two years ago which might cause her Honour to make a costs order that differs from the order as to the general costs of the proceedings, is in the defendants' submission without merit. The plaintiffs' repetition of the schedule of "triable issues" has no obvious relevance to the only remaining issue to be determined in these proceedings.
5. In the defendants' submission, a referral of the costs argument back to Harrison AsJ would add to the costs of the proceedings, delay their disposal and is not required for the fair and just determination of the remaining issue in dispute. It would be contrary to the case management principles set out in Part 6 of the CPA.
6. The defendants observe that the plaintiffs advance no submissions in respect of the defendants' application for a gross sum costs order.

Consideration

1. Two issues arise for consideration. The first is whether the reserved costs before Harrison AsJ ought to be determined by me. The second is whether a gross sum costs order ought to be made including the costs of the proceedings generally (and with respect to this motion).
2. The defendants' application is made pursuant to s 98(4)(c) of the CPA. Section 98(1) of the CPA provides that, subject to the rules of court and any Act, costs are in the discretion of the court and the court has "full power to determine by whom, to whom and to what extents costs are to be paid". Section 98(4)(c) provides that the court may make an order that a party to whom costs are to be paid is entitled to a specified gross sum instead of assessed costs.
3. As to whether or not I should determine the costs reserved by Harrison AsJ, I accept the defendants' submission that I am in as good a position to do so, as articulated by the defendants in their written submissions. It would be wasteful in both time and money for the parties to have to relist the matter before her Honour. The plaintiffs were almost entirely unsuccessful in the proceedings before her Honour.
4. The general costs of the proceedings were determined by me in favour of the defendants. Thus pursuant to r 42.7 of the UCPR, the reserved costs should be dealt with in the same way as the general costs of the proceedings; ie the reserved costs should be paid by the plaintiffs unless there is a good reason to depart from that rule. The offer contained in the plaintiffs' submission, and which is the reserved costs order they cavil for, in my view does not reflect the fact that even before Harrison AsJ, the plaintiffs failed on the substantive parts of their claim.
5. I observe that s 98(6) of the CPA refers to costs which include, in the case of an appeal to the Court, the costs of the proceedings giving rise to the appeal. Section 98 appears to envisage a situation such as the present, where the Court may make an order as to costs (including the proceedings giving rise to the appeal), specifying a gross sum costs order instead of assessed costs.
6. The second issue for consideration is whether or not I should make a gross sum costs order in this case.
7. The principles governing specified gross sum costs orders are well established. They have been recently summarised by the Court of Appeal in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 31 ("Ahern"), applying the reasoning in cases such as Harrison v Schipp (2002) 54 NSWLR 734; [2002] NSWCA 213, Hamod v New South Wales [2011] NSWCA 375 ("Hamod") and James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 ("James"). Such principles include:- 1. The discretion 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. It may be exercised where the assessment of costs would be protracted and expensive and in particular, if it appears 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 (Ahern at [14]; Hamod at [813]). There is little doubt that here, bearing in mind the history of the litigation, that an assessment of costs would be protracted and extensive. The evidence discloses that it is unlikely that the plaintiffs will be able to meet any costs order. 2. The principal purpose of a specified gross sum costs order is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process (Ahern at [15]). Bearing in mind the history of the litigation, fully set out in Haigh 2024, there is likely to be expense, delay and aggravation associated with any costs assessment, which will almost certainly be contested. 3. The power should be exercised only 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 available materials (Ahern at [17]). The costs ordered should be based on an informed assessment of the actual costs incurred having regard to the evidence before the court. Courts have typically applied a discount when assessing costs on a gross sum basis, although the extent of a discount depends on the accuracy and reliability of the costs evidence available to the court (Ahern at [18]; Hamod at [814]). I am entirely confident that I have sufficient evidence to determine a fair, reasonable and proportionate gross sum costs order. In my view, the costs of the defendants are entirely reasonable, even without the significant discounting that they have applied. 4. 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 issues litigated and the costs claimed, the complexity of the proceedings in relation to their cost and the capacity of the unsuccessful party to satisfy any costs liability (Ahern at [16]; Hamod at [816]). The power may be exercised where parties conduct has unnecessarily contributed to the costs of the proceedings (Ahern at [17]; Hamod at [818]). In this case, the issues litigated were complex. Their complexity was contributed to by the opacity of the pleadings - never remedied on appeal - and the extensive documentation, much of it irrelevant and insignificant. In my opinion, the plaintiffs' conduct has unnecessarily contributed to the costs of the proceedings. 5. A court may adopt a "broad brush" approach to quantification, because a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order (Ahern at [18]). In the instant case, there is uncontested evidence about the likely outcome at a costs assessment. Notwithstanding that likely outcome, the defendants seek a significantly discounted sum. Here my approach is not "broad brush". Rather it is specifically based on evidence that is not in dispute. The significant discounts applied by the defendants instil confidence that the sum claimed is fair, reasonable and proportionate. 6. The exercise of the power to award gross sum costs must also take into account the overriding purpose set out in Part 6 of the CPA and, in particular, the requirement that issues between the parties be resolved in such a way that the costs to the parties are proportionate to the importance and complexity of the subject matter in dispute: see James at [3].
8. I observe that litigation on the facts and circumstances the subject of these proceedings has been agitated in this Court in one way or another for more than 25 years. The proceedings must be brought to finality.
9. In my opinion, a gross sum costs order of $160,000 for the entirety of the proceedings ought to be made.

Orders

1. I make the following orders:- 1. The plaintiffs are to pay the costs reserved by Harrison AsJ on 21 October 2022; and 2. The plaintiffs are to pay the costs of the proceedings, including the costs reserved by Harrison AsJ on 21 October 2022 and this notice of motion, fixed in the gross sum of $160,000.

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: 09 December 2024