I gave judgment in the "Mortgage Proceedings" (2019/199597) on the substantive issues on 21 December 2020. I gave judgment on the question of costs on 8 April 2021.
By notice of motion originally dated 27 May 2021 the plaintiffs sought amongst other things a lump sum costs order resulting from the conduct of the trial and other costs. I granted leave for the motion to further be amended to update the amount claimed which motion was heard on 28 October 2021.
The defendant, who at the moment is unrepresented, in her written submissions opposes my determining those costs now, alternatively that such if any order is made that the judgment be stayed pending what will be her belated application for leave to appeal both judgements referred to in [1] above.
The defendant notwithstanding notice having been given did not appear at the hearing of the motion. Instead she provided detailed written submissions on all questions by email to my Associate at 1.11pm on the day of the hearing which I have taken into account.
[2]
Background
I gave judgment in the Mortgage Proceedings on 21 December 2020: Pirovic v Barbieri [2020] NSWSC 1892. The principal issue the case was concerned with was the enforceability of a mortgage which had been entered into between the plaintiffs and a company controlled at the time by the second plaintiff's father and more to the point how much money was due under it. There was never in dispute that a mortgage was signed by the relevant parties. The real dispute between the parties was whether the plaintiffs owed $161,500, alternatively $185,262 (the plaintiffs' case) or $1,918,196.95 (the defendant's case). The defendant was at that time represented by Mr Cheshire SC.
I found the plaintiffs owed an amount under the mortgage of $185,262. There were other questions including the construction of the mortgage and other issues which theoretically would, if made out, have rendered the mortgage unenforceable. The plaintiffs were unsuccessful on those issues.
The defendant's whole case (on her cross-claim) depended on a series of oral representations allegedly made by and to the deceased, the defendant and, to some extent, in the alleged presence of others to the effect that demands for repayment of the mortgage had been made, in which case the plaintiffs would have been liable not only for the repayment of principal but a substantial amount of interest leading to the huge disparity between what the respective parties asserted was due under the mortgage.
I rejected the defendant's case on this point which involved the making of credit findings as to the defendant's reliability accurately to recount relevant events. Instead I preferred the contemporaneous records such as they existed which did not support the defendant's version of events.
Although she brought the case in her capacity as executor and trustee, the defendant's case only got off the ground if she was believed in her narrative. There was no simple question of construction which could have resolved issues quickly and cheaply. Her case would always have involved giving in effect largely uncorroborated testimony with all the risks that involved.
I delivered a judgment as to costs in this matter on 8 April 2021, following a directions hearing on 26 March: Pirovic v Barbieri [2021] NSWSC 335. The defendant was at that time still represented by Mr Cheshire SC.
The first question to be addressed in that matter was where the $23,762 (being the difference between $161,500 and $185,262), should be paid from. I found that it should be paid to the defendant as Executor and Trustee out of the Controlled Monies Account and that the balance of the monies $1,571,434.95 should be paid from the Controlled Monies Account to the Plaintiffs: [8]-[9].
The next question was what the appropriate orders for costs were: [10]. I found that the defendant had been wholly unsuccessful on the substantial issue and therefore should pay the plaintiffs' costs of the trial: [14].
The following questions were whether the defendant should be indemnified out of the estate or pay the costs personally and if so on an ordinary or indemnity basis: [15]. I accepted the plaintiffs' submissions and found that the defendant should pay the plaintiffs' costs personally on an ordinary basis: [25].
At a directions hearing of 23 April 2021 which concerned the making of orders reflecting the above decision on costs, the defendant was represented by her solicitor at the time, Mr Tomaras of William Roberts Solicitors. At a directions hearing on 16 June 2021, the plaintiffs reported that they had filed an amended notice of motion and had forwarded their total costs to Mr Tomaras asking for a response seeking a lump sum determination, but had not yet applied to the Court for such. By the next directions on 18 June, the parties were in agreement that a lump sum should be fixed and the defendant indicated she would need time to determine how to get the necessary funds together.
On 19 July 2021, the defendant filed a notice of change of solicitor naming a Mr Alexander Tzovaras of Tzovaras Legal (Australia) Pty Ltd. The solicitor with carriage of the matter, Mr Ted Tzovaras, unfortunately suffered a stroke on 21 August. When I next heard the matter on 30 August his son and the solicitor on record, Alexander, informed me of these events. There were numerous directions hearings following this in which I received updates on the health of Mr Tzovaras and the feasibility of his continuing to work on the matter. On 17 September, Mr Alexander Tzovaras informed me that his firm was going to file a notice of ceasing to act in the matter and the defendant sent to my chambers an unsworn affidavit seeking a three week adjournment of the matter.
At the next directions on 8 October there was no appearance for the defendant. Instead, she sent to my Associate another affidavit requesting a further two to three week adjournment. I indicated at that time that I would set the question of the lump sum costs down for hearing at the next occasion.
On 22 October the defendant appeared for herself by telephone and stated that she wanted to appeal the costs decision only (T.2/27-31). She also informed me that she was finalising legal representation. Given the numerous delays of the motion I set it down for hearing on 28 October.
The defendant did not appear at the hearing of the motion and had no solicitor on the record. Instead she sent submissions in relation to the question of the lump sum costs to which I refer below.
[3]
Legal Principles
Section 98 of the Civil Procedure Act 2005 (NSW) outlines the Court's powers as to costs and states relevantly:
(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 plaintiffs also relied upon Part 42.2 of the Uniform Civil Procedure Rules 2005 (NSW) which provides:
42.4 Power to order maximum costs (cf SCR Part 52A, rule 35A)
(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.
(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party -
(a) has failed to comply with an order or with any of these rules, or
(b) has sought leave to amend its pleadings or particulars, or
(c) has sought an extension of time for complying with an order or with any of these rules, or
(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap -
(i) progress of the proceedings to trial or hearing, or
(ii) trial or hearing of the proceedings.
(3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap -
(a) progress of the proceedings to trial or hearing, or
(b) trial or hearing of the proceedings.
(4) If, in the court's opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).
The principles relevant to the making of a lump sum costs order were relevantly set out in Hamod v The State of NSW [2011] NSWCA 375 ("Hamod") per Beazley JA (as her Honour then was) at [813] to [820].
The relevant principles are as follows:
1. that the discretion 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 cost order likely to result from that assessment" (Hamod at [813]);
2. that the Court should exercise the discretion when "it considers it can do so fairly between the parties and has significant confidence in arriving at an appropriate sum on the material available" (Hamod at [813]);
3. that the discretion should be exercised judicially and only after giving the parties an opportunity to make submissions and that the Court needs to be confident that the approach taken in respect to the estimation of costs is "fair, logical and reasonable" (Hamod at [815]);
4. that in exercising the discretion under s.98(4), the Court should take into account "more general considerations", being those reflected in s.56(1), 57(1)(d) and 60 of the CPA, which include:
1. the relevant responsibility of the parties for the costs incurred;
2. the degree of any disproportion between the issues litigated and the costs claimed; and
3. the complexity of proceedings in relation to the costs incurred; and
4. the capacity of the unsuccessful party to satisfy any costs liability (Hamod at [816]);
1. that it is appropriate to exercise the discretion in s.98(4) where the costs have been incurred in a lengthy or complex case and it is desirable to avoid the expense, delay and aggravation likely to be involved in costs assessment by the course of the "likely length and complexity of the assessment process" or from the "likelihood that additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability" (Hamod at [817]);
2. that the power may be exercised where a party's conduct has "unnecessarily contributed to the costs of proceedings, especially where the costs incurred have been disproportional to the result of the proceedings" (Hamod at [818]);
3. that the assessment in support of a lump sum order must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings, the interlocutory process, the preparation for final hearing and the final hearing (Hamod at [819]);
4. that the Court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment (Hamod at [819]);
5. that the costs order should be based upon "an informed assessment of the actual costs having regard to the information before the Court (for example by relying on cost estimates or bills)" (Hamod at [820]);
6. that the assessment of a lump sum cost order may involve "an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in an informal costs assessment" (Hamod at [820]);
7. that the Courts have typically applied a discount in respect to legal costs on a gross sum basis (Hamod at [814]).
Further, as Ball J explained in Baycheck v Baycheck [2010] NSWSC 987 at [11] (recently cited in In the matter of Mosman & Co Pty Ltd [2020] NSWSC 1245 at [13]):
…Implicit in this principle is that the gross sum bear a reasonable relationship to the actual costs of the party making the application, and to the costs that that party might reasonably be expected to recover on assessment. That means, among other things, there must be a reasonable evidentiary basis for the order the court makes. The evidentiary basis is normally provided by the costs applicant in the form of an affidavit setting out the actual costs incurred and how they were calculated. Often, the evidence also includes evidence of the amount that is likely to be recovered on assessment.
[4]
The Plaintiffs' Submissions
The plaintiffs in the Mortgage Proceedings (Mr Antun Pirovic and Ms Zorina Pirovic) seek a lump sum cost order pursuant to s.98(1)(b) and s.98(4) of the CPA and Part 42, Rule 4 of the UCPR. They seek the sum of $558,217.95, including $2,080.00 (inclusive of GST) for costs of the preparation and prosecution of the further further amended notice of motion (Prayer 6). The defendants in the family provision proceedings ("FPA Proceedings") (Mr Vincent Pirovic and Ms Antonia Pirovic) seek a sum of $11,240.90, including $1,040.00 (inclusive of GST) for costs associated with the further further amended notice of motion (Prayer 7).
[5]
Reasons why a lump sum cost order should be made
The defendant is the sole registered proprietor of an unencumbered unit in Pyrmont, the value of which is approximately $4,000,000, as well as approximately $300,000 in cash. Accordingly, the plaintiffs argued that the defendant had the means to meet any costs order but not from any cash assets, but only by either selling or encumbering the Pyrmont Unit.
The plaintiffs noted that the hearing of the Mortgage Proceedings was listed for a total of 12 days. Following the delivery of judgment in those proceedings on 15 December 2020, there were multiple directions hearings for the entry of orders in accordance with the judgment, orders for costs to reflect the judgment on costs dated 21 March 2021, and the further amended notice of motion originally filed 27 May, and as further amended on 7 July.
It was therefore submitted that the assessment of costs will be protracted and expensive. In large part, that will be due to the conduct of the defendant in failing to provide timely instructions to her legal representatives. In respect to the costs in the Mortgage Proceedings, a schedule was forwarded to the defendant's solicitors on 3 and 13 May to which no response was received, leaving the issue of costs at large.
The defendant has been notified of the costs incurred by the plaintiffs in the Mortgage Proceedings since 3 May 2021.To that email was attached a schedule of those costs. On 18 June 2021, the Court in the course of the hearing of the notice of motion, suggested that it be amended to include an order for a lump sum cost. The defendant has therefore had more than adequate opportunity to either seek particulars of the costs in the Mortgage Proceedings and/or to make submissions in respect to the making of a lump sum cost order.
In all the circumstances, it is submitted appropriate that the Court should exercise its discretion under s.98(4) of the CPA and make a lump sum cost order.
[6]
Exercise of the discretion to order a lump sum cost order
The defendant (who was also a cross-claimant) in the Mortgage Proceedings and the plaintiff in the FPA Proceedings was the wife of the deceased. It was in her capacity as executrix of the deceased's estate that Ms Barbieri both defended the plaintiff's claim and brought the cross-claim in the Mortgage Proceedings.
The Mortgage Proceedings concerned a mortgage ("the Mortgage") entered into by the deceased's daughter, Zorina, and the deceased's company, Universal Associates Pty Ltd in 1983. Based on the terms of that Mortgage, no capital or interest was due to be repaid unless and until a demand was made. Since 30 June 2017, Zorina has been seeking a discharge of the mortgage secured over her 75% interest in a property at Rose Bay. The Mortgage secured the principal sum of $161,500, together with any further advances.
Notwithstanding repeated demands by Zorina to discharge the mortgage, including the provision of the sum of $161,500 in response to the letter from Brock Partners, the then solicitors for the defendant, dated 28 September 2018, the defendant has continued to refuse to discharge the Mortgage, even after the sum of $161,500 was offered on the terms as stipulated by the defendant (i.e. release).
This refusal led the plaintiffs to file a Summons to commence proceedings in 2019. On 10 July 2019, the Court ordered that the Mortgage be discharged, upon condition that the sum of $1,918,382 be paid into a Controlled Monies Account from the net proceeds of sale of the Rose Bay property. That condition arose from the defendant filing a cross-claim. The Rose Bay property and the sale as to 75% were the only assets of Zorina.
On 15 December 2020, the Court gave judgment dismissing the Cross-Claim, other than amending the amount due under the Mortgage to take account of additional advances in the sum of $23,762, thereby increasing the principal sum under the Mortgage from $161,500 to $185,262.
By their defence to the cross-claim, the plaintiffs admitted that the amount due under the Mortgage was either $161,500 or in the alternative, $185,262.
In dismissing the cross-claim, the Court found that the assertions by the defendant were untruthful or known to be false (see Pirovic v Barbieri [2020] NSWSC 1892 at [360], [354]-[356]). The defendant's conduct in refusing to discharge the mortgage and in prosecuting the cross-claim was conduct which was the principal if not sole cause of the costs now being sought being incurred in the proceedings. The filing of the cross-claim was a step and course the defendant should not have taken it being based on false assertions as to fact.
By the cross-claim, the defendant claimed the sum of $1,918,382, comprising further advances in the sum of approximately $270,000 together with interest, making a total of $1,918,382. The plaintiffs argued that claim was not for the benefit of the deceased's estate, but for the defendant's personal gain. The claim was based upon the defendant's assertion that notwithstanding the clear words of the deceased's will, she as residual beneficiary was entitled to "all interest payable under the Mortgage" and that she had been "disadvantaged" by the terms of the will.
The claim in the cross-claim was a substantial claim. The plaintiffs argued that the costs incurred in the proceedings were therefore neither disproportionate to the sum claimed nor the issues raised particularly when one takes into account the extended hearings and the conduct of the defendant, including the falsity of the allegations contained in the Cross-Claim.
The plaintiffs also noted that the proceedings involved allegations of demands having been made extending over a period of almost 30 years to which little or no documentary evidence was provided by the defendant. The proceedings required evidence to be adduced and determination that the alleged demands had not been made, but also included as ultimately found (Pirovic v Barbieri [2020] NSWSC 1892 at [378]) that the estate was estopped from asserting the making of such demands.
Therefore, the hearing of the Mortgage Proceedings was by reason of the conduct of the defendant unreasonably extended and protracted. As and from the filing of the amended defence to the cross-claim in July 2019 it had always been open to the defendant to accept that the sum due under the Mortgage was either $161,500 or $185,262, thereby removing the need for any lengthy and protracted hearing and the unnecessary incurring of extensive costs. The costs incurred by the plaintiffs in the Mortgage Proceedings were therefore proportionate to the claim made and the issues raised.
The plaintiffs therefore submitted that the defendant should, in her capacity as executrix of the deceased's estate, cause the total of $185,262 less the amount of $23,262.00 to be paid in equal shares to each of the plaintiffs, in the sum of $80,750.00 each (Prayer 5).
The plaintiffs also propose to calculate interest on the amount of the specific legacy was calculated pursuant to s.84A(3) of the Probate and Administration Act 1898 (NSW) (reflected in Prayer 6).
[7]
FPA proceedings
As and from the first hearing date on 21 October 2019, the FPA proceedings was to be determined following the determination of the Mortgage Proceedings. The success or otherwise of the FPA Proceedings was therefore by reason of the deceased's estate being a small one (approximately $250,000) that the FPA Proceedings were unlikely to proceed if the cross-claim in the Mortgage Proceedings failed. Following the dismissal of the cross-claim, the plaintiff took no steps to prosecute the FPA before filing a notice of discontinuance after a number of directions hearings before Hallen J. Therefore, the defendants' lump sum costs in respect to the FPA Proceedings is limited due to the small amount of work that was required to be undertaken.
[8]
Assessment of the lump sum costs orders as sought
As the cost orders made in both the Mortgage Proceedings and the FPA Proceedings were costs on the ordinary basis and notwithstanding that Courts have applied a discount in assessing legal costs on a gross sum basis (per Hamod at [814]), the lump sum cost order as sought in the sum of $549,951.65 consists of solicitors' costs less a 20% discount and disbursements.
Counsel's fees are usually treated as disbursements and, where those fees are appropriate to the issues raised in the proceedings as in the case of other disbursements, and unless held to be inappropriate, are generally not the subject of a discount: De Britt Seafood Pty Ltd v Qantas Airways Limited (No. 7) (2015) FCA 929 ("De Britt Seafood") per Middleton J at [75].
Counsel fees reflect the extensive work by Counsel as identified in the Memorandum of Fees attached to the Affidavit of Rachael Abbott, sworn 27 July 2021 at p66-120. Detail the work undertaken by Counsel including extensive conferences and the drafting and settling of all pleadings and Affidavits in the proceedings, other than the original Affidavits and pleadings for the hearings between 1 and 10 July 2019. The detailed identification of those costs as set out in each of the Memorandum of Fees, justifies the Court in being satisfied as to their appropriateness and that they are "logical, fair and reasonable": Hamod at [820].
The legal costs of Delaney Lawyers are set out in p10-65 of the Affidavit of Rachael Abbott, sworn 7 July 2021. Each of those tax invoices, although not a Bill of Costs for an assessment, identify the work undertaken and the charges applied to that work. Those tax invoices provide sufficient detail for the Court to form a view as to the appropriateness that the fees charged are logical, fair and reasonable: Hamod at [820].
The plaintiffs submitted the Court is entitled to rely upon cost estimates or in this case, tax invoices in support of a lump sum cost order to be made. Further, although there is no evidence by any costs assessor, such evidence, although useful, is not determinative: De Britt Seafood at [66].
The plaintiffs next addressed the quantum of discount to be applied. In Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd [2017] FCA 63, Bromwich J applied and accepted the discount of the cost assessor as to 82% of the applicant's legal costs.
The majority of the legal costs are time based on the work of Rachael Abbott, a partner of Delaney Lawyers whose hourly of $480.00 per hour is fair and reasonable. An examination of the invoices of Delaney Lawyers discloses the work undertaken on a time based cost.
If the Court were to allow a discount on an ordinary basis, the plaintiffs submitted that due to the nature and complexity of the matter, the discount on the legal fees should not be greater than 20%. That would bring the discounted solicitor's fees to a total of $91,228.45. The Court should, however, allow all disbursements, including Counsel's fees, thereby making a lump sum cost order in both the Mortgage Proceedings and FPA Proceedings totalling $549,951.65.
[9]
Defendant's submissions
The defendant submitted that the costs in the matters are very excessive. In particular she argued that the reliance on a barrister to prepare and conduct the hearing was grossly over charged and should be examined by a costs assessor.
It was submitted that the costs of the plaintiff's counsel of $300,000 was not justified, especially in comparison to the small costs of the solicitor. If run conventionally there would be fees for the solicitor and then a brief to counsel.
It was further submitted that the costs should be reduced by 50%-60% given the unusual circumstances in which they were incurred.
The defendant argued that there were no costs agreements issued or estimates provided so that the Court could determine any lump sum, and if the costs were sent to an assessor, these documents would need to be provided.
The defendant argued that the plaintiff's application for a lump sum order is merely an attempt to avoid the process of a costs assessment and a way to obtain judgment which would be costly to the defendant to appeal, as opposed to a costs assessment which could be reviewed by a review panel.
The defendant also indicated that she had filed a notice of appeal for the costs judgment and therefore submitted that the determination of the lump sum costs order should be stayed until that appeal is determined, or in the alternative, if a determination is made, that the entering of orders be stayed until determination of the appeal, or at least until the appeal has been listed so that application can be made to the Court of Appeal.
[10]
Consideration
Although the defendant made written application I defer the making of a lump sum order until her appeal is determined and further that a conventional assessment was more appropriate I formed the view that not only should I proceed with a lump sum order but that I should not defer the hearing of the application.
There is one compelling reason why in my view I should proceed with the matter and that is first the finalisation of this matter has taken an inordinate amount of time. The time lost since I gave judgment has been caused it seems to me as a result of the defendant engaging in various delaying tactics. She has as is clear from the above changed her lawyers on numerous occasions. She has also absented herself from hearings of which she has been given notice. Both of these have had the effect of preventing the court from efficiently proceeding with the matter and most recently she has lodged a notice of appeal, almost eleven months after I gave judgment and seven months after final orders were made.
In addition, given the trial was conducted before me and I am therefore familiar with the issues and the claim made for costs is not overly complex. Further time to enable a more traditional costs assessment would add further unnecessary delay to this matter which I view as unfair on the plaintiffs.
The plaintiffs rely upon two affidavits of Ms Rachael Abbott of 7 July and 28 October 2021. She was not cross examined.
The first affidavit apart from setting out the history of the matter annexes the invoices of the solicitor and those of Mr Drummond of counsel. Those invoices are appropriately detailed describing at an intelligible level the work undertaken and the time taken to address the various tasks.
In the case of Ms Abbott her hourly rate is $480. In the case of Mr Drummond it is $500. Ms Abbott for example when attending court charged on an hourly basis for the hours she attended. Mr Drummond on the other hand when in court appears to have charged a daily rate of $5000 without specifying precisely what that day entailed but it would seem to cover court hours (usually 10 am to 4 pm).
That level of charging for either Ms Abbott and or Mr Drummond does not appear from my observation of similar applications and my general experience to be excessive, quite the opposite they are in my view quite reasonable.
Criticism is made by the defendant on at least two bases. First, that the overall costs are excessive. Secondly, that Mr Drummond appears to have been overly involved in the preparation of the case. On that basis it is submitted the case was not run "conventionally". By that I take it to mean that because counsel was more actively involved than was necessary excessive fees were incurred. There are several answers to this criticism. First that there is a difference in the solicitor's charges as opposed to that of counsel is of no moment as such. What is clear from the level of fees and my own checking of the invoices it does not seem to be any or any unjustified duplication of the fees. That Mr Drummond took a much more active role in the preparation and running of the case is a matter for arrangement between solicitor and counsel. Further, as there was only $20 per hour difference in the hourly rates of Ms Abbott and that of Mr Drummond the ultimate difference would not be all that great in any event. In addition on the basis of the invoices only Ms Abbott and Mr Drummond were retained for the two plaintiffs. No other lawyers appear to have been involved. Lastly although her invoices are not before the court the defendant was represented by senior counsel and solicitors at the hearings.
Given the densely factual and legal issues before the court I am not able to accept as an appropriate criticism that the fees overall were "excessive", "grossly" or otherwise because of the additional work undertaken by Mr Drummond. The invoices of both Ms Abbott and Mr Drummond contain a substantial level of detail as to work done and precise calculations of charges.
It is also submitted that the overall fees should be reduced by "50%-60%" by reason of the "unusual circumstances in which the fees were incurred.
I should note that no attempt has been made to point to any particular charge or charges as excessive. I accept that the defendant purports to be unrepresented, although the nature of the submissions filed suggest a lawyer's hand at work. I also note that she absented herself from the lump sum hearing. That said upon my analysis I am not able to agree that the overall fees were excessive. Given the small discrepancy in hourly rates any difference overall would be minimal if the number of hours spent by Ms Abbott as opposed to Mr Drummond were for example reversed.
The process of costs assessment is often time consuming and expensive. There is no evidence before the court that the defendant would sensibly co-operate in order to obtain a quick and cheap process if that regard was achieved. Quite the opposite. Her conduct has caused a protraction of the process to date and with the very belated filing of the notice of appeal promises further inordinate delays.
In this case having been involved with it for some time I am able in my view to make a broad brush assessment required by the authorities about which there does not appear much disagreement. The lack of a costs agreement before the court does not in my view detract from my ability to make an assessment in accordance with the authorities. I should also note that the defendant made no application for the production of any documents at all from the plaintiffs' lawyers notwithstanding Ms Abbott's first affidavit was filed as long ago as 7 July.
The plaintiffs submit that I should not discount at all the disbursements which of course includes counsel's fees. Further it is submitted that I should discount the solicitor's fees by only 20%. The defendant says a discount of 50%-60% is appropriate.
In my view I would reject both sides' submissions. The defendant's suggested discount is bereft of any analysis beyond assertion of the fees being excessive. The plaintiffs' submission has the benefit of some of the authorities. In all the circumstances I am of the view that but for the court filing fees and the amount described other disbursements I consider a discount of 30% should be applied for all legal fees including counsel against the contingency that although a small differential only some of the work undertaken by Mr Drummond could have been undertaken by Ms Abbott.
I would therefore order, pursuant to ss.98(1)(b) and 98(4) of the CPA and r.42.4 of the UCPR, that in relation to the Mortgage Proceedings, the defendant / cross claimant pay to the plaintiffs / cross defendants the sum of $558,217.95 (in accordance with paragraph 4 of Ms Abbott's 28 October 2021) less a 30% discount on all legal fees, including counsel's fees, but excluding other disbursements. I would also order in the FPA Proceedings that the plaintiff pay the defendants $11,240.90 (consistent with paragraph 9 of Ms Abbott's 28 October affidavit) less a 30% discount on all legal fees, including counsel's fees. I would invite the parties to send to the Court their calculations of these amounts, as well as the total interest owing on the final gross sum figure (per Prayer 9).
Finally, I would order that Ms Barbieri pay in her capacity as the Executor of the Estate of the Late Frank Bakaric from that estate $161,500.00 to the plaintiffs in equal share, being $80,750.00 to each of Mr Vincent Pirovic and Ms Antonia Pirovic. I would invite the parties to provide an updated calculation of the interest owing on that amount to date.
I Certify that this and the preceding pages are a true copy of the reasons for judgment of Justice Sackar - 11 November 2021
[11]
Amendments
11 November 2021 - delete paragraph [75]
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Decision last updated: 11 November 2021