Amirbeaggi v EB (No 2) - [2023] NSWCA 184

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Amirbeaggi v EB (No 2) [2023] NSWCA 184
Hearing dates: On the papers
Date of orders: 10 August 2023
Decision date: 10 August 2023
Before: Kirk JA; Simpson AJA; Basten AJA
Decision:
The Court makes the following additional orders:
(3) Order that the applicant pay the respondents a sum of $33,000 for the costs of the proceedings in this Court, in satisfaction of order (2) made on 25 May 2023.
(4) Otherwise dismiss the amended notice of motion filed by the respondents and dated 26 June 2023.

Catchwords:
PRACTICE AND PROCEDURE – costs – application by party entitled to costs under judgment for gross sum costs order – whether variation of order in judgment – power to specify gross sum in place of costs to be assessed – factors to be considered – amount in issue disproportionate to costs incurred – history of disputatious conduct – nature of evidence to support application

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 59, 60, 98
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Amirbeaggi v EB [2023] NSWCA 108
Bobb v Wombat Securities Pty Ltd & Ors(No 2) [2013] NSWSC 863
Hamod v State of New South Wales [2011] NSWCA 375
Short v Crawley (No 45) [2013] NSWSC 1541

Category: Costs
Parties: Farshad Amirbeaggi (Applicant)
EB (First Respondent)
SB (Second Respondent)
RB (Third Respondent)
District Court (Fourth Respondent, submitting)
Representation:
Counsel:
B K Nolan (Applicant)
B Tronson / J Rogers (First to Third Respondents)
Solicitors:
Yates Beaggi (Applicant)
Bartier Perry Lawyers (First to Third Respondents)

File Number(s): 2022/00336033
Publication restriction: N/A

JUDGMENT

THE COURT: On 25 May 2023, the Court delivered judgment in an application for judicial review of a judgment and orders of the District Court. The Court dismissed the proceedings and ordered that the applicant pay the respondents’ costs in this Court.^[1] On 7 June 2023, the respondents filed a notice of motion seeking a gross sum costs order in an amount of $55,716.45. The motion was supported by an affidavit of the respondents’ solicitor, Sharon Levy, of Bartier Perry.
1. Amirbeaggi v EB [2023] NSWCA 108.
On 26 June 2023, the respondents filed an amended notice of motion noting that a single fee memorandum for junior counsel had been omitted and seeking payment of an increased amount of $57,320.25. A further affidavit was supplied in support of the amended notice of motion. As the amount of the amendment was $1,620 (plus GST) it may be doubted whether the cost of pursuing the amendment was justifiable.
There is no doubt that the Court has power to specify a gross sum instead of costs to be assessed, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The power to make such an order is not subject to specific constraints.^[2] A court may be reluctant to make such an order where,…

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 Amirbeaggi v EB (No 2)

Details

AGLC: Amirbeaggi v EB (No 2) [2023] NSWCA 184
Case: [2023] NSWCA 184
Decision Date: 10 August 2023

CaseChat Overview and Summary

This matter concerned an application by the respondents for a gross sum costs order in the Supreme Court of New South Wales, Court of Appeal. The applicant, Amirbeaggi, had previously been ordered to pay the respondents' costs of the proceedings in the Court of Appeal, to be assessed. The respondents sought to vary this order by seeking a gross sum of $33,000 in lieu of a detailed assessment.

The primary legal issue before the Court of Appeal was whether it had the power to make a gross sum costs order in substitution for an order for costs to be assessed, and if so, what factors should be considered in exercising that discretion. The respondents contended that such an order was appropriate given the disproportionate amount of the costs claimed relative to the amount in issue in the original proceedings, and the history of disputatious conduct by the applicant.

The Court of Appeal considered the principles governing the award of costs, including the court's broad discretion under the Uniform Civil Procedure Rules 2005 (NSW). It noted that while costs are generally assessed on a party-and-party basis, a court may order a gross sum in lieu of assessment where it is just and reasonable to do so. The Court took into account the nature of the evidence provided by the respondents in support of their application, which included details of the costs incurred and the reasons for seeking a gross sum order.

The Court of Appeal made additional orders, directing that the applicant pay the respondents the sum of $33,000 for the costs of the proceedings in the Court of Appeal, in satisfaction of the earlier costs order. The respondents' amended notice of motion seeking this gross sum order was otherwise dismissed.

Orders

Orders of the court

The Court makes the following additional orders:

(3) Order that the applicant pay the respondents a sum of $33,000 for the costs of the proceedings in this Court, in satisfaction of order (2) made on 25 May 2023.

(4) Otherwise dismiss the amended notice of motion filed by the respondents and dated 26 June 2023.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Amirbeaggi v EB (No 2) [2023] NSWCA 184
Hearing dates:	On the papers
Date of orders:	10 August 2023
Decision date:	10 August 2023
Before:	Kirk JA; Simpson AJA; Basten AJA
Decision:	The Court makes the following additional orders: (3) Order that the applicant pay the respondents a sum of $33,000 for the costs of the proceedings in this Court, in satisfaction of order (2) made on 25 May 2023. (4) Otherwise dismiss the amended notice of motion filed by the respondents and dated 26 June 2023.
Catchwords:	PRACTICE AND PROCEDURE – costs – application by party entitled to costs under judgment for gross sum costs order – whether variation of order in judgment – power to specify gross sum in place of costs to be assessed – factors to be considered – amount in issue disproportionate to costs incurred – history of disputatious conduct – nature of evidence to support application
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 59, 60, 98 Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:	Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Amirbeaggi v EB [2023] NSWCA 108 Bobb v Wombat Securities Pty Ltd & Ors(No 2) [2013] NSWSC 863 Hamod v State of New South Wales [2011] NSWCA 375 Short v Crawley (No 45) [2013] NSWSC 1541
Category:	Costs
Parties:	Farshad Amirbeaggi (Applicant) EB (First Respondent) SB (Second Respondent) RB (Third Respondent) District Court (Fourth Respondent, submitting)
Representation:	Counsel: B K Nolan (Applicant) B Tronson / J Rogers (First to Third Respondents) Solicitors: Yates Beaggi (Applicant) Bartier Perry Lawyers (First to Third Respondents)
File Number(s):	2022/00336033
Publication restriction:	N/A