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Ahern v Aon Risk Services Australia Ltd (No 2)

Ahern v Aon Risk Services Australia Ltd (No 2)

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Case Copied 18 March 2022 22 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Hearing dates: On the papers
Date of orders: 18 March 2022
Decision date: 18 March 2022
Before: Meagher JA; White JA; Brereton JA
Decision:
(1) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of the summons filed on 3 August 2020 in the gross sum of $75,000.
(2) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of this motion filed on 19 August 2021 in the gross sum of $8,000.

Catchwords:
COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross sum to be awarded – appropriate discount

Legislation Cited:
Civil Procedure Act, ss 56, 98(3), 98(4)(c)
Legal Profession Act 2004 (NSW), ss 353, 357, 373, 384

Cases Cited:
Bailey v O’Dea [2021] NSWSC 1420
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bechara v Bates [2016] NSWCA 294
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422
Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 734; [2002] NSWCA 213
James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84
Kostov v Zhang (No 2) [2016] NSWCA 279
Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327
Rodi v Gelonesi [2016] NSWCA 348
Short v Crawley (No 45) [2013] NSWSC 1541

Category: Costs
Parties: Marshall Ahern (First Applicant)
Estelle Therese Clancy (Second Applicant)
Aon Risk Services Australia Ltd (Respondent)
Representation:
Counsel:
Janet McDonald (Respondent)
Solicitors:
Clancy Lawyers (Applicants)
James Tuite & Associates (Respondent)

File Number(s): 2020/226639
Publication restriction: Nil
Decision under review

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 159

Date of Decision:

01 May 2020

Before:

Abadee DCJ

File Number(s):

2018/390039

Judgment

THE COURT: On 6 August 2021, this Court dismissed with costs a summons filed by the applicants, Mr Marshall Ahern and Ms Estelle Clancy (referred to collectively as Mr Ahern, without intending any disrespect), on 3 August 2020: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 (JA). That summons sought judicial review of a decision of Abadee DCJ in the District Court dismissing an appeal brought by Mr Ahern under Legal Profession Act 2004 (NSW), s 384 against the determination of a costs review panel.
By notice of…

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.

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Details

Case: [2022] NSWCA 39
Decision Date: 18 March 2022

CaseChat Overview and Summary

This matter concerned an application by Aon Risk Services Australia Ltd for a specified gross sum costs order against Mr Ahern, pursuant to section 98(4)(c) of the *Civil Procedure Act 2005* (NSW). The dispute arose in the context of protracted litigation between the parties, which had been marked by significant delay and aggravation.

The primary legal issue before the Court of Appeal was whether it was appropriate to make a gross sum costs order, and if so, how that sum should be quantified. This involved considering the unchallenged evidence of the actual costs incurred by Aon, as well as the challenged evidence of an expert costs assessor, and determining an appropriate discount to apply to the gross sum.

The Court reasoned that the history of the litigation, including the delay and aggravation, supported the making of a gross sum order. It accepted the unchallenged evidence of Aon's actual costs but found that the expert costs assessor's evidence was not persuasive. Applying the principles for making a gross sum costs order, the Court determined the appropriate quantum by considering the actual costs incurred and applying a discount.

The Court ordered that Mr Ahern pay Aon’s costs of the summons filed on 3 August 2020 in the gross sum of $75,000, and Aon’s costs of the motion filed on 19 August 2021 in the gross sum of $8,000, both pursuant to section 98(4)(c) of the *Civil Procedure Act 2005* (NSW).

Orders

Orders of the court

(1) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of the summons filed on 3 August 2020 in the gross sum of $75,000.

(2) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of this motion filed on 19 August 2021 in the gross sum of $8,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Hearing dates:	On the papers
Date of orders:	18 March 2022
Decision date:	18 March 2022
Before:	Meagher JA; White JA; Brereton JA
Decision:	(1) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of the summons filed on 3 August 2020 in the gross sum of $75,000. (2) Pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c), Mr Ahern pay Aon’s costs of this motion filed on 19 August 2021 in the gross sum of $8,000.
Catchwords:	COSTS – application for specified gross sum costs order under Civil Procedure Act 2005 (NSW), s 98(4)(c) – where history of delay and aggravation in litigation between parties – where unchallenged evidence as to actual costs incurred – where expert costs assessor’s evidence challenged – whether appropriate to make order – quantification of gross sum to be awarded – appropriate discount
Legislation Cited:	Civil Procedure Act, ss 56, 98(3), 98(4)(c) Legal Profession Act 2004 (NSW), ss 353, 357, 373, 384
Cases Cited:	Bailey v O’Dea [2021] NSWSC 1420 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Bechara v Bates [2016] NSWCA 294 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 734; [2002] NSWCA 213 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 Kostov v Zhang (No 2) [2016] NSWCA 279 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Rodi v Gelonesi [2016] NSWCA 348 Short v Crawley (No 45) [2013] NSWSC 1541
Category:	Costs
Parties:	Marshall Ahern (First Applicant) Estelle Therese Clancy (Second Applicant) Aon Risk Services Australia Ltd (Respondent)
Representation:	Counsel: Janet McDonald (Respondent) Solicitors: Clancy Lawyers (Applicants) James Tuite & Associates (Respondent)
File Number(s):	2020/226639
Publication restriction:	Nil
Decision under review	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 159 Date of Decision: 01 May 2020 Before: Abadee DCJ File Number(s): 2018/390039