Webster v Super Smart Strategies Pty Ltd

Consideration

1. The relevant principles that apply to the consideration whether it is appropriate to make a gross sum costs order were set out by Giles JA in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (which applied to the statutory predecessor to s 98(4)) in the following terms: "[21] The power conferred by Pt 52A, r 6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment (Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sparnon v Apand Pty Ltd (Federal Court of Australia, von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628). [22] Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson (at 124), the gross sum "can only be fixed broadly having regard to the information before the Court"; in Hadid v Lenfest Communications Inc (at [35]) it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates". The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson (at 123); Hadid v Lenfest Communications Inc (at [27])). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported) per Clarke JA)."
2. The Court of Appeal (Beazley P, Meagher and Payne JJA) has recently re-affirmed the correctness of this approach in the context of an application under s 98(4) of the Civil Procedure Act in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 in the following passage: "[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123. [13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). [14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]. . . . [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v New South Wales at [816]-[817] is apposite."
3. I am satisfied that the detail in the invoices themselves as well as the opinions and estimates given by Mr Sharpe in his affidavit provide sufficient material to determine an appropriate sum. For the reasons given in Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531, I am satisfied that the cross-claimants unnecessarily contributed to the costs of the proceedings both by filing cross-claims (which caused significant delay and added unwarranted complexity) which they decided ultimately not to pursue and by adopting unproductive, unmeritorious and inefficient forensic positions and tactics throughout the litigation.
4. The liquidation of the first cross-claimant and the bankruptcy of the second cross-claimant provide the basis for an inference that it is unlikely that the costs orders, much less the judgment sums ordered in favour of the plaintiffs, will be paid in full. In these circumstances, it would be unjust to require Finn Foster to spend further money on a costs assessment.
5. I note that Finn Foster relied on an offer of compromise which was purported to be made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) on 17 July 2015. On 26 April 2017 at the hearing of Finn Foster's application for dismissal of the first cross-claim, Finn Foster did not press its application for indemnity costs. In these circumstances I do not consider that it would be appropriate for me to take into account the offer of compromise in determining the amount of the gross sum to be paid pursuant to the costs order. I confirm that I have not taken this into account in assessing the gross sum.
6. It is also of significance that the first and second cross-claimants have not sought to be heard against the applications for gross sum costs orders. In all the circumstances I am persuaded that it is appropriate to make gross sum costs orders as sought. While, as Mr Sharpe opined, the figure may be "within the range", this is not determinative of what amount should be allowed on a gross sum costs order. The amount is usually reduced to take account of the "broad-brush" approach to be taken. I have rounded down the amount sought to a figure which is less than that claimed and which I consider to be reasonable in all the circumstances. The figure awarded is in the order of 75% of the total fees rendered.
7. I am satisfied that it is appropriate that the costs of these applications for gross sum costs orders ought follow the event.

Orders

1. I make the following orders: 1. In respect of the costs payable pursuant to order (1)(b) of the orders made on 4 May 2017, order the first and second cross-claimants, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), to pay to the first cross-defendant the amount of $200,000 within 28 days of the date of this order. 2. Order the first and second cross-claimants to pay the first cross-defendant's costs of its application for a gross sum costs order.

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