Penson v Titan National Pty Limited [2015] NSWCA 121 | Case summary

Court of Appeal (NSW)|2015-05-01|Before: Gibson J

Solicitors: Pure Legal (First and Second Respondents) File Number(s): 2014/373028 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2014] NSWDC 219 Date of Decision: 1 May 2014, 7 May 2014, 1 August 2014 (Balla DCJ); 19 August 2014, 9 October 2014, 21 November 2014 (Gibson DCJ) File Number(s): 2009/337626; 2014/137439; 2014/017976

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

To reflect the broad brush approach involved in setting a gross costs sum, I would round that down to $11,800.00.

Ms Penson has raised a number of other arguments concerning the quantum of the costs that should be awarded. I find none of them persuasive, and now give brief reasons why I have come to that conclusion.
Ms Penson contends that she has repeatedly tried to settle the proceedings. She relies on letters she wrote on 10 March 2014, 25 July 2014 (dated 25 April 2014 by mistake) and 31 March 2015. The letter of 10 March 2014 made an offer to settle the District Court proceedings for $67,000, with each party bearing its own costs. The letter date 25 April 2014 repeated the offer of 10 March 2014. The letter dated 31 March 2015 did not make a settlement offer, unless an invitation to withdraw the writs of execution is regarded as a settlement offer. These letters relate to offers made in the course of the District Court proceedings, not in the present Court of Appeal proceedings. Thus they are not relevant to the question now at issue, namely whether there should be a gross sum costs order concerning the failed application for a stay, and if so what the quantum of that costs order should be. In any event, they are offers to settle for considerably less than the respondents were ultimately held entitled to receive.
Ms Penson observes that even though it was on 24 June 2011 that his Honour Judge Williams made the order for costs of the 2009 Proceedings, it was not until 28 November 2012 that the respondents made an application to have their costs assessed. She contends that Ms Perry is blaming her for this delay in the respondents receiving the costs they were held entitled to receive. I do not understand Ms Perry to be attributing any such blame. Even if she were, I have not made a finding about who is responsible for that delay, and do not intend to do so. For reasons I have already given, the events that have occurred since the filing of the application for a costs assessment are in my view amply sufficient to justify the making of a gross sum costs order.
Ms Penson observes that Ms Wood-Weber had not signed the offer to enter a costs agreement with Ms Perry. She makes no specific submission on the basis of this observation, but if the observation is intended to suggest that Ms Wood-Weber might not have a liability to Ms Perry, that suggestion would be incorrect. The offer to enter a costs agreement provides that it can be accepted in several ways, one of which is "giving us instructions in any form after receiving this document". The offer to enter a costs agreement is dated 22 April 2015, and it is quite clear that Ms Wood-Weber has instructed Ms Perry to take steps concerning the stay application after that date.
Ms Penson seeks to rely on decisions that other judges have made in other proceedings in which she or Aquaqueen has been involved, concerning the relationship between the quantum of costs claimed and the amount of gross sum costs actually awarded. I do not find that helpful in deciding the appropriate amount to award concerning this application.
Ms Penson contends that the respondents are seeking indemnity costs. That is not so. The quantum of costs payable under the costs agreement between the respondents and their solicitor is the starting point from which they calculate the amount that they submit is an appropriate gross sum to order, but when a significant discount is applied to that figure their claim is in substance not one for indemnity costs.
There are some orders on foot, arising from other proceedings, under which sums of money are payable from (in broad terms) the Titan camp to the Penson camp. Ms Penson submits that it would be appropriate for there to be a set-off of those amounts, or for there to be an exchange of bank cheques concerning them. It is not for the court to order a procedure for exchange of bank cheques. Nor in the circumstances would I order there to be a set-off of the various amounts of costs owed. A sufficient reason for taking that view is that there is a lack of identity in the parties who owe money one to the other. The order concerning the present application for a stay will be one whereby Ms Penson is ordered to pay costs to Ms Wood-Weber and Titan. The costs judgment in favour of Ms Penson is one given on 10 March 2015 in favour of Ms Penson, but against Titan alone. I recognise that that judgment arose from a certificate of determination of costs issued on 19 February 2015 which stated that the costs applicants were Aquaqueen and Ms Penson, and the costs respondents were Titan and Ms Wood-Weber. However unless and until it is set aside, it is the judgment itself that is conclusive about who owes money to whom.

Interest on Costs

Ms Perry submits that the history of the matter makes it appropriate to order that interest accrue on these costs. Sections 101(4) and 101(5) of the Civil Procedure Act 2005 empower the Court to order that interest be paid on any amount that is payable under an order for payment of costs. Such interest will not run on a costs order unless the Court expressly orders that it do so. [10]
Because an order for costs aims to compensate a party who has been successful in litigation for the costs of running that litigation, it is usually appropriate to allow interest on costs, to the extent that those costs are allowed on assessment, from the date the costs are actually paid. [11] In the usual situation where an order for interest on costs is made, the costs have already been paid by the time the order for interest on costs is made, and have been paid in varying amounts and at varying times as the litigation has progressed. Thus the order commonly made, following the Lahoud v Lahoud precedent, provides a mathematical rough approximation of the amount that would result if a full calculation was made of interest running for different periods of time, each period of time starting when an amount of costs was paid.
In the present case, so far as the evidence discloses, none of the costs concerning which interest is sought have yet been paid. It is possible that the costs have been paid in the time between the respondents' evidence being filed and the date of delivery of these reasons for judgment, and the drafting of the order for interest on costs should allow for the possibility that that has occurred.
While there is a theoretical possibility that the costs might be paid by instalments, in relation to such a comparatively small amount it is not appropriate to complicate an order for interest on costs by making provision for what is to happen if the costs are paid by instalments. Allowing interest in that way would introduce a complexity that is not in keeping with the aim of gross costs orders, of providing simplicity. Interest on costs shall run only from the date the totality of the memorandum of fees is paid.

Orders

I make the following orders concerning the notice of motion filed 13 April 2015 in proceedings 2014/00373028: 1. Applicant to pay the costs of the respondents assessed at $11,800. 2. Applicant to pay interest on the said costs at the rates prescribed from time to time for the purposes of s 101 of the Civil Procedure Act 2005 (NSW), such interest to commence to run from the date when the respondents have paid to Pure Legal the whole of the costs and disbursements itemised in the memorandum of costs and disbursements dated 4 May 2015 that is Annexure B to the affidavit of Christine Louise Perry sworn 4 May 2015 in this application.

Endnotes

Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120.
[2011] NSWCA 375 at [816]-[817].
Hadid v Lenfest Communications Inc [2000] FCA 628 at [35]; Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [22].
In the matter of Aquaqueen International Pty Ltd [2015] NSWSC 500 at [29].
Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120.
Aquaqueen International Pty Ltd v Titan National Pty Limited ( District Court of New South Wales, Gibson J, 19 August 2014, unrep) at 16.
TCN Channel 9 Pty Limited v Antoniadis (No 2) [1999] NSWCA 104; 48 NSWLR 381 at [15]-[16]; Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 at [67]-[68].
Penson v Titan National Pty Limited [2015] NSWCA 108.
Gagner Pty Ltd t/as Indochine Cafe v Cantouri Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691 at [149]-[154] and cases there cited.
Spedding v Nobles (No 2) [2007] NSWCA 87 at [14]-[15].
Joseph Lahoud v Victor Lahoud [2006] NSWSC 126, especially at [82]-[83]. 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: 26 June 2015

Penson v Titan National Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)

Cited By (50)