Ahern v Aon Risk Services Australia Ltd (No 2)

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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

  1. 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.

  2. By notice of…

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Details
Case
[2022] NSWCA 39
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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