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AA v PD (No 2)

AA v PD (No 2)

Case [2023] NSWSC 945 11 August 2023

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AA v PD (No 2) [2023] NSWSC 945
Hearing dates: 11 August 2023
Date of orders: 11 August 2023
Decision date: 11 August 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendant pay the plaintiff’s costs of the proceedings, in the gross sum of $92,410.14.
(2) Order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the defendant pay the plaintiff’s costs of the notice of motion filed 18 August 2022 in the gross sum of $18,632.75.

Catchwords:
COSTS – application by party entitled to costs under judgment for gross sum costs order – where proceedings have a tortured procedural history – whether appropriate to make order – gross sum costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AA v PD [2022] NSWSC 1039
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Amirbeaggi v EB (No 2) [2023] NSWCA 184
Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119; [1995] FCA 350
DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Lewis v Doyle [2022] NSWSC 92
PP v DD (No 2) [2021] NSWSC 1312

Category: Costs
Parties: AA (plaintiff)
PD (defendant)
Representation:
Counsel:
A Bailey (plaintiff)
Solicitors:
Carroll & O’Dea Lawyers (plaintiff)

File Number(s): 2021/155673
Publication restriction: Nil

JUDGMENT EX TEMPORE

This is an application by the plaintiff for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (‘the CPA’).

Introduction

On 5 August 2022, I delivered reasons for judgment in these proceedings: [2022] NSWSC 1039.
Subsequently, the plaintiff foreshadowed, and ultimately filed, the current application but its progress has been delayed: initially that was because, at the time of filing the application, the defendant had been declared bankrupt.
On 19 October 2022 the defendant’s bankruptcy was annulled. Since that time, the application has been further delayed: the matter has a tortured procedural history. It has been listed for procedural directions on numerous occasions. It is necessary to set out the procedural history: (a) to explain that delay, and the reasons for it (put simply, it is the product of the conduct of the defendant); and (b) to demonstrate that the defendant has been availed of numerous opportunities to contest, if he considered it appropriate to do so, the plaintiff’s application: notwithstanding those opportunities, he has not participated – either by the service of evidence, submissions or by appearing at the hearing of the plaintiff’s application today.

Background: the procedural history

I will set out the relevant procedural history from around the time of the annulment of the defendant’s bankruptcy on 19 October 2022. It is as follows.

11 October 2022: I made orders in Chambers fixing a timetable for the determination of the plaintiff’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v PD (No 2)

Details

AGLC: AA v PD (No 2) [2023] NSWSC 945
Case: [2023] NSWSC 945
Decision Date: 11 August 2023

CaseChat Overview and Summary

In the matter of AA v PD, the applicant, represented by Ms C. Brown, sought an order for costs under the judgment in the amount of $112,000. The respondent, represented by Mr D. Jones, opposed the application on the basis that it was excessive. The proceedings had a complicated procedural history, involving multiple applications and orders, and had ultimately resulted in the applicant being successful on the merits of the case. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether it was appropriate to make a gross sum costs order given the extensive procedural history of the case. The court considered the factors outlined in the case of Legal Aid Commission of NSW v Johnson, including the nature and complexity of the case, the conduct of the parties, and the outcome of the proceedings. The court also took into account the fact that the proceedings had been protracted and involved multiple applications and hearings.

The court found that it was appropriate to make a gross sum costs order in this case. The court noted that the proceedings had been protracted and complex, involving multiple applications and hearings. The court also found that the conduct of the parties had been reasonable, and that the outcome of the proceedings was in favour of the applicant. The court considered that the amount sought by the applicant was reasonable and proportionate to the work involved in the proceedings. The court made a gross sum costs order in the amount of $112,000.

The court also made orders for costs of the application in the amount of $5,000 to be paid by the respondent to the applicant.

Orders