Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva

Judgment

1. This judgment deals with directions consequent upon the Court's last judgment in these proceedings: Riva NSW Pty Ltd v Mark A Fraser (No. 2) [2020] NSWSC 1162. This judgment should be read with the Court's last judgment. Persons, matters and events are referred to in both judgments the same way.
2. Since the last judgment, the solicitors, Clancy Lawyers Pty Ltd, have written to the Court on 2 September 2020 pursuant to direction 1(a) of the directions made on 31 August 2020, indicating that the defendant does not seek to rely upon the written costs agreements referred to in Orders 5 - 10 made on 11 February 2020. Clancy Lawyers Pty Ltd have also indicated that they do not seek a different costs order to that proposed in Order 4 made on 31 August 2020.
3. And Gells Lawyers have also written to the Court on 7 September 2020 indicating that they do seek a different costs order to that proposed in Order 4 on 31 August 2020: namely, that Messrs Fraser and Clancy pay the costs of Riva between 20 December 2019 and 12 March 2020 as agreed or assessed; and Messrs Fraser and Clancy bear the cost of Riva on the motion dated 13 March 2020. Gells Lawyers also seek a directions hearing to assist in reviewing the remaining issues for determination in accordance with the option given by the Court in the last judgment (at [50]).
4. Following those communications, the Court emailed back to the parties on 8 September 2020 indicating that the Court would attempt to give some directions in writing to attempt to case manage the proceedings, in the following terms: "The Court refers to the letter from Clancy Lawyers dated 2 September 2020 and the letter from Gells Lawyers of 7 September 2020. And the Court refers to paragraph [50] of the Court's judgment of 31 August 2020. The Court has decided to attempt to give some directions in writing to resolve the balance of the issues in these proceedings rather than to hold a formal directions hearing. To that end it is the Court's intent to deal first with the unresolved issue of indemnity costs in the Riva damages proceedings, then to proceed to consider the question of specified gross-sum cost orders. It is the Court's understanding that both parties are prepared for the Court to make a specified gross sum costs order. Would the parties please confirm this. Unfortunately there have been many submissions filed in this case over the last 18 months and the evidence is spread through many affidavits. The Court wishes to substantially reduce the amount of time it is spending in finding the parties' relevant evidence and submissions. So the Court wishes the parties to extract from previous submissions and refashion into a single compact form what they each want to say by way of submission in relation to indemnity costs. The Court is not looking for anything new but rather for the parties to isolate all their submissions on that single subject. Equally, the Court wants the parties to identify in a very compact form the existing evidentiary material upon which they propose to rely for the contest in relation to indemnity costs. The parties must create a joint single lever arch file of the essential material upon which each of them wishes to rely (each party will have half of the file and the Courts judgments do not have to be included in it). The parties must make a considered decision as to how much material they wish to put before the Court on this issue. And the parties should recognise that the Court already has considerable familiarity with the matter. The parties' submissions in relation to indemnity costs must be cross-referenced to the evidence in the single lever arch file bundle. In accordance with the party's obligations under the Civil Procedure Act the Court expects the parties to cooperate and to create a set of agreed set of short minutes of order to give effect to Court's procedural requests set out in this email. This should be done by the end of this week."