S&A Law Pty Ltd v Pasquini

Category: Costs

Parties: S&A Law Pty Limited (Plaintiff)
Oliver Pasquini (Defendant)

Representation: On the papers

File Number(s): 2024/00419896

Publication restriction: Nil

JUDGMENT

1. S&A Law is an incorporated legal practice in New South Wales, which commenced proceedings against its former client and Mr Oliver Pasquini, a director of its former client, to recover unpaid costs. Mr Pasquini is a foreign national who does not reside in Australia. Mr Pasquini failed to respond to, or defend, the proceedings, and on 16 May 2025, Stevenson J entered default judgment against Mr Pasquini for $67,536.46 with interest, and ordered that Mr Pasquini pay S&A’s costs.

2. By notice of motion filed on 13 June 2025, S&A seeks a gross sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW) (CPA). It seeks its costs and disbursements of the proceedings of $32,143.12 and its costs of this motion of $3,089.25. It requested that its motion be determined on the papers.

3. I accept that S&A is entitled to its costs, and the case is an appropriate one for a gross sum costs order, although because of the unsatisfactory nature of the evidence supporting the amount of costs claimed, I consider that a global figure of $20,000 should be awarded.

Entitlement to a gross sum costs order

4. The principles concerning a gross sum costs order under s 98(4)(c) CPA are well known: see Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [813]-[820] (Beazley JA, as her Excellency then was, with whom Giles and Whealy JJA agreed). Factors relevant to the discretion to order costs in a gross sum include the capacity of the unsuccessful party to satisfy any costs liability, the complexity of the proceedings in relation to their cost, and the desirability to avoid the expense and delay associated with a contested costs assessment: Hamod at [816]-[817]. The Court may adopt a “broad brush” approach to quantification: Harrison v Schipp (2002) 54 NSWLR 738 at 743 (Giles JA); that 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 any formal costs assessment”: Hamod at [820].

5. There is a preliminary issue as to whether S&A is entitled to its costs at all. The entitlement of an unincorporated law firm to obtain recompense for legal work performed by its employed solicitors was clarified by the High Court in Birketu Pty Ltd v Atanaskovic [2025] HCA 2 (Birketu), but some uncertainty remains as to the position of incorporated legal practices: see Birketu at [42] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ). However, noting the existence of authority in this State suggesting that an incorporated legal practice may be entitled to the cost of providing the services of its employed lawyers, and in the absence of submissions to the contrary, I am prepared to proceed on the basis that S&A is entitled to its costs in this case: see Burrows v Macpherson & Kelly Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [15]-[16] (Meagher JA), [106]-[112] and [123]-[133] (Leeming JA) and [161]-[162] (White JA); Spencer v Coshott (2021) 106 NSWLR 84 at [86]ff (Simpson AJA, Bell P, as the Chief Justice then was, and Emmett AJA agreeing).

6. In my opinion, the case is an appropriate one for a gross sum costs order. The evidence before the Court reveals that Mr Pasquini is a foreign national, who does not reside in Australia. He has not engaged with S&A or these proceedings, and the available inference is that he would not engage in discussions in relation to S&A’s costs or any costs assessment.

7. However, the evidence in support of the motion does not provide a sound basis for the amount claimed by S&A. The principal solicitor, Robert Silberstein, deposed in an affidavit that S&A’s total costs and disbursements were $39,889.82. The relevant work was performed by Mr Silberstein and Ms Hyun, a senior associate, at “hourly rates” of $700 and $400 plus GST per hour respectively.

8. Mr Silberstein deposed that “So as not to incur unnecessary costs, Ms Hyun undertook the lion share of [the] professional services”. While Mr Silberstein described, in general terms, some of the work to which those costs related, there was no itemisation of the time spent on various tasks. And, leaving aside the question whether those hourly rates are the correct way to quantify the costs actually incurred by S&A (as to which see Birketu at [31]-[36] per Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ), there was no explanation as to why the costs claimed by S&A were reasonably incurred, in relation to what was a very simple and undefended claim in debt.

9. Adopting a broad-brush approach and applying a discount to take into account the issues associated with the supporting evidence, I consider a more appropriate figure to be $20,000.00.

Orders

10. For the reasons above, I make the following order:

11. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendant is to pay the plaintiff a specified gross sum of $20,000.00 for costs and disbursements of the proceedings, including the costs of this motion.

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Amendments

08 July 2025

Jurisdiction amended.

08 July 2025

Jurisdiction amended.