Sackl v Auslink Investment Co. Associates Pty Ltd

THE COURT ORDERS BY CONSENT THAT:

1. The Notice of Appeal from the Federal Circuit Court filed on 16 December 2020 be dismissed. THE COURT FURTHER ORDERS:
2. The appellant is to pay the costs of the first respondent, to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 This Court has been informed by Mr Sackl that the appeal the subject of these proceedings is abandoned. The parties seek an order by consent that the proceedings be dismissed. There is no dispute, in that context, that Mr Sackl must pay the respondents' costs. Indeed, Mr Sackl has no objection to an order that he pay the costs of the first respondent, Auslink Investments Co. Associates Pty Ltd (Auslink), as taxed. However, an issue has arisen regarding the nature of the order to be made, as Auslink makes an application pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) for a lump sum costs order. The amount sought is $51,714.09 (which excludes GST). Mr Sackl opposes the making of that order. 2 The parties agree that this matter can be determined on the papers, and to that end, each has filed written submissions, and affidavit evidence in support. 3 Auslink relies on two affidavits of Shenghai Mo, affirmed 8 March 2022 and 15 March 2022 respectively, which set out the basis for the amount of the lump sum sought. Mr Sackl relies on an affidavit of Christopher Antony Dale sworn 15 March 2022, which addresses the basis of the amount claimed. 4 In summary, Auslink contends that in light of the history of the proceedings, it is an injustice to Auslink to now have to spend more time and costs to tax a bill of costs, even more so where Mr Sackl is a bankrupt. 5 That history was detailed as follows: (1) On 17 September 2019, judgment was entered against Mr Sackl for $361,000 plus interest of $23,445.22, as a result of misleading and deceptive conduct found to have been engaged in by him: Auslink Investment Co Associates Pty Ltd v Sackl [2019] NSWSC 1227. Costs in favour of Auslink were awarded against Mr Sackl. (2) Mr Sackl sought unsuccessfully to set aside the judgment: Auslink Investment Co Associates Pty Ltd v Sackl [2020] NSWSC 640, with Mr Sackl's claim that he was not the person served with the Statement of Claim being rejected: at [15] and [20]. (3) On 5 November 2019, a Bankruptcy Notice was issued against Mr Sackl based on the judgment. There was no application to set aside the Bankruptcy Notice. (4) The Creditor's Petition was filed on 10 January 2020 and listed for hearing on 12 March 2020. The Creditor's Petition was adjourned on eight occasions. (5) The hearing took place on 5 November 2020 and judgment was delivered on 13 November 2020, at which time a sequestration order was made against Mr Sackl with costs in favour of Auslink: [2020] FCCA 3068. An application for a stay was heard on 18 November 2020 and rejected on 24 November 2020: [2020] FCCA 3156. (6) The appeal in these proceedings was filed on 11 December 2020 and disposed of in practical terms in the week commencing 7 March 2022, with the appellant, Mr Sackl, abandoning it. 6 Auslink submitted that given this history, and given that Mr Sackl is now a bankrupt, there is no utility in requiring a taxation of costs and exposing Auslink to further costs in circumstances where Mr Sackl was found to have engaged in misleading and deceptive conduct. Auslink posed the question of why it should be exposed to further "expense, delay and aggravation", citing Billingsley v Napoli [2021] FCA 526 at [85(1)]. 7 It submitted that the criticisms from Mr Sackl's solicitor are unfounded. It submitted that the approach of the Court to fix a lump sum is a "broad brush approach", rather than the approach of carrying out a taxation of costs, and that the Court can take into account the Judge's own experience and form a view about the sum: Billingsley v Napoli at [85(4)]-[85(5)]. It submitted that anything other than the order sought would delay the proceedings further. 8 Mr Sackl objected to that course. He contended that the cases referred to by Auslink involved an order for costs which had not been pursued by it. He submitted that it is unlikely that a taxation will ever occur, which is the premise of the application and the additional cost Auslink wishes to avoid. The only additional cost is of preparing a bill of costs in taxable form, which would provide a proper basis to determine the costs, as opposed to the "broad brush approach" Auslink seeks. It was submitted that that was not an additional burden and nor would it involve significant "expense, delay and aggravation". Mr Sackl also relied on the shortcomings of Auslink's evidence, as identified by Mr Dale.