This is the Court's second judgment in these proceedings. In the Court's first judgment, the Court granted relief under the Personal Property Securities Act 2009 (Cth), s 182(4)(a), removing certain security interests claimed by the first defendant from the Personal Property Securities Register, maintained by the second defendant: Snowy Valleys Council v Anthony William Evans & Anor [2021] NSWSC 428.
This judgment should be read with the Court's first judgment. Events, matters and persons are referred to in both judgments in the same way.
This judgment deals with the issues of costs left open from the first judgment. In paragraphs [52] - [54] of the first judgment, the Court said:
"[52] The Court will also make a costs order in the Council's favour against Mr Evans. This is the kind of case in which the normal procedures of an assessment for costs may be likely to provoke Mr Evans into the creation of further artificial documents representing fictitious transactions for deployment on the PPS Register. For that reason, the Court is ready to exercise its jurisdiction under Civil Procedure Act 2005, s 98(4)(c) to fix a specified gross sum instead of assessed costs.
[53] The circumstances in which the Court will take that course are not confined but not uncommonly occur when a costs assessment may itself become an occasion for delay or for vexatious conduct by one of the parties for assessment: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Giles JA (at [21] - [22]; Hamod v New South Wales [2011] NSWCA 375 at [819]; Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99 at [28]. This is such a situation.
[54] If the Council wishes to take advantage of s 98(4)(c), it may file a motion seeking a specified gross sum costs order instead of assessed costs. This may be returnable before the Court on 17 June 2021."
On 28 May 2021, the Council filed a Motion seeking orders under Civil Procedure Act 2005, s 98(4)(c) for the council to be paid costs and disbursements in the sum of $27,465.67 inclusive of GST together with further amounts of costs to be incurred up to and including the hearing of the Motion.
The Motion came before the Court for hearing on 17 June 2021. The Court granted the relief that the plaintiff sought under the Motion for the reasons which follow. The first defendant, Mr Evans, did not appear. The second defendant was excused from attendance. The Court is satisfied that proper notice of this hearing was given to Mr Evans.
The Court continues to be of the view expressed in paragraph [52] of the first judgment that this is a case in which the normal procedures for an assessment of costs risk Mr Evans creating further artificial documents such that a costs assessment will itself become an occasion for delay or vexatious conduct by Mr Evans.
I discussed in Bahamad v Wong [2020] NSWSC 991 at paragraphs [9] - [20] the history of s 98(4)(c) and the principles relevant to its application. Those principles are applied in consideration of this application.
The Council reads in support of its application an affidavit of Mr Jonathan Prowse of 28 May 2021, which sets out the total costs and disbursements the subject of the plaintiff's claim. The plaintiff's claim for an order for a specified gross sum instead of assessed costs, including all costs up to the conclusion of this hearing is the total sum of $30,063.57.
This sum is made up as follows. Firstly in respect of professional costs, including GST, the legal costs for MCW Lawyers preceding the preparation and filing of the present Motion is $22,258.50 exclusive of disbursements. Anticipated professional costs from the filing of the Motion and up until today, inclusive of GST, are a further $1,914. The total of these two amounts is $24,172.50. Discounting that by 15% on account of what the plaintiff claims is a likely outcome of an assessment, the specified gross sum which is sought for professional costs is $20,546.62.
Disbursements incurred by MCW Lawyers are sought in addition to professional costs. As disbursements constitute actual external expenditure, in a costs assessment disbursements are not discounted. The plaintiff claims $8,545.95 in disbursements up until the time of the first judgement, 30 April 2021, and a further $971 in disbursements associated with the filing of the present Motion, making a total of $9,516.95.
Thus the plaintiff claims, as a specified gross sum instead of assessed costs, the sum of $30,063.57 (being $20,546.62 plus $9,516.95).
Mr Prowse gives full particulars of both the legal work undertaken to date and the anticipated legal work, sufficient for the Court to have confidence that it can reach a gross sum fairly between the parties upon the materials that are available.
Mr Prowse is an experienced solicitor at MCW Lawyers who has been continuously practising since 1991. He has been an accredited specialist in commercial litigation since 2008. He is an alternate member of the Supreme Court Uniform Rules Committee. And he is a member of several NSW Law Society committees. He is a member of the NSW Law Society's Professional Conduct Committee, the Litigation Law and Practice Committee and a specialist accreditation advisor for the Committee for Commercial Litigation. He is also a member of the Local Court Rules Committee.
Mr Prowse's hourly rate for calculating his fees until 1 March 2021 was $550 per hour plus GST, calculated in minimum six minute attendances. From 1 March 2021 his hourly rate was $600 per hour plus GST, also calculated at minimum six minute attendances. For his level of experience as an accredited specialist, these rates are reasonable.
Mr Prowse's sworn descriptive summary of the work he has done is comprised of a day-by-day account of his professional services from before the commencement of these proceedings with the carriage of this matter for MCW Lawyers through until today. For Supreme Court proceedings of this kind, the amount Mr Prowse claims for the work done is fair and reasonable. It raises no issue for the Court as to a need for an additional discount of the amount claimed beyond the 15% discount allowed by Mr Prowse for the likely outcome of a costs assessment. The calculation that Mr Prowse proffers reduces his legal fees by 15% which is commensurate with what would be allowed on assessment in this case.
The appropriate discount to apply when a specified gross sum costs order is made will vary from case to case depending on such matters as the quality of the available evidence, the size of the overall fees claimed, the nature of the work and the overall difficulty of the proceedings together with other matters relevant in particular cases. Sometimes a discount will be considerably larger than 15% and may be in the order of 20 or 30%.
But in this case, the Court accepts that the discount of 15% which Mr Prowse advances is appropriate. There is in-built economy in Mr Prowse's fees. For example, he has not briefed counsel and has conducted the whole proceedings himself. He did so with the high degree of competence which would be expected of an accredited specialist in commercial litigation. The detail of his memorandum of fees shows that the work which has been billed is only that which is strictly necessary to achieve the outcome required in the proceedings.
[2]
Conclusions and Orders
For these reasons, the Court makes the following orders:
1. The Court makes an order for the payment of a specified gross sum of $30,063.57 instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c).
2. Judgment for the plaintiff against the first defendant for $30,063.57 for costs.
3. Adjourn this matter to 9.30am on 9 December 2021 with a view to the final dismissal of the proceedings.
4. Grant liberty to apply in the event of the need to enforce the injunction granted against the first defendant on 30 April 2021.
[3]
Amendments
17 June 2021 - Order (4) - "enforce the" instead of "enforcement"
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 June 2021