Secure Logic Pty Limited v Paul William Noble

Judgment

1. This is the Court's fifth judgment in these proceedings. The Court's previous judgments are identified in the Court's fourth judgment given on 5 October 2021: Secure Logic Pty Limited v Paul William Noble (No.4) [2021] NSWSC 1250 ("the fourth judgment"). This judgment should be read with the Court's previous judgments, particularly the fourth judgment. Events, matters and persons are referred to in this judgment in the same way as they are in the previous judgments.
2. In the Court's fourth judgment, the Court settled the final form of the orders and made costs orders in the proceedings, which included the fixing of a specified gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c). Orders (18) and (19) of those orders provided that the first and second defendants, Mr Noble and Peach Tree Bay, are respectively liable to pay 70% of the plaintiffs' costs of the proceedings (including the First Cross-Claim) and that the amount payable by those two defendants in respect of such costs is $1,240,563.37, a sum fixed under s 98(4)(c). From that the offsetting figure of $166,299.11 on Mr Noble's Cross-Claim is deducted to leave a net judgment against the first and second defendant of $1,074,264.26.
3. On 26 October 2021, the first and second defendants forwarded to the Court short written submissions questioning the basis of the Court's calculations of costs in the fourth judgment. The relevant text of the first and second defendant's submissions was brief and is set out below: "4. After determining an apportionment of 70% in relation the First and Second Defendants ' costs liability, the Court at [105] referred to Secure Logic's s 98(4)(c) claim, and then identified the "starting point [as] Secure Logic's total claim for costs of $2,049,888.27 exclusive of GST". 5. However, Secure Logic did not claim that amount of costs. That figure represented its total costs of the proceedings, but the total costs it claimed (including with respect to costs with respect to the dispute over final orders) was a gross sum of $1,425,164.75 excluding GST (see Mr Lacey's affidavit of 22 June 2021 at [54]). 6. Mr Lacey noted at [57] pf his affidavit that the gross sum claimed had been calculated on the basis of Secure Logic receiving 100% of its disbursements, and 55% of its solicitors' fees. 7. Given the Court's reference to the "total claim for costs", it appears that the figure of $1,425,164.75 excluding GST was intended to be the Court's starting point. 8. The amendments sought to [105] of the judgment are based upon a starting point of $1,425,164.75 excluding GST. No adjustments have been made to the disbursement calculations (because the gross sum claimed by Secure Logic involved claiming those sums at 100%), but consequent adjustments have been made to the Court's calculations of McCabes' costs using the amount claimed for those costs in Mr Lacey's affidavit. 9. If the starting point is adjusted, then it follows that the consequent calculations in the judgment would be adjusted too. The balance of the adjustments sought in the schedule are as a consequence of the adjustment to the starting point."