Ashton v Pratt (Costs) - [2012] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: Ashton v Pratt (Costs) [2012] NSWSC 19
Hearing dates: 1 March 2012
Decision date: 01 March 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
No variation of provisional costs orders. Issues left to Assessor

Catchwords: COSTS - particular components - whether should be excluded from general costs order - whether matter for Court or Assessor
Category: Costs
Parties: Madison Ashton (plaintiff)
Jeanne Pratt (defendant)
Representation: Counsel:
Mr R K Newton (plaintiff)
Mr M S Henry (defendant)
Solicitors:
David Legal (plaintiff)
Arnold Bloch Leibler (defendant)

File Number(s): 2010/56518

Judgment (ex tempore)

HIS HONOUR: Following a four day trial in September 2011, I gave judgment on 16 January 2012 in the substantive proceedings, concluding that there should be judgment for the defendant with costs. At that time counsel for the plaintiff indicated that there may be questions which the plaintiff wished to agitate in respect of costs, and I granted leave for the matter to be re-listed for that purpose. It is on that basis that the matter returns before me today.

As I have made clear on other occasions in such circumstances, where at the conclusion of proceedings a costs order is made without argument, effectively on a prima facie basis, if the matter is further argued I approach it afresh, untrammelled by the original costs order, which is regarded as provisional.

The plaintiff does not dispute that there should generally be an order to the effect that the plaintiff pay the defendant's costs, but submits that that order should be qualified, and that the appropriate order is as follows:

Plaintiff to pay the defendant's costs as assessed or agreed excluding:

(a) the fees and disbursements referable to the appearance or attendance at trial of Clelland SC and a second partner from the defendant's solicitors;

(b) the preparation of the unread affidavit sworn by Tony Gray including the costs of interviewing Mr Gray, the drafting of his affidavit, the settling of his afffidavit and the collation of annexures or exhibit to same; and

(c) the disbursements associated with the attendance of Mr Tony Gray at the trial;

(d) the amount of those costs of the plaintiff as assessed or agreed, wasted as a result of preparing an affidavit in reply to the affidavit of Tony Gray and in preparing for his cross examination.

In support of that contention, the plaintiff submits as follows:

In the present proceedings there were a number of unnecessary or unreasonable costs incurred by the defendant, or costs wasted as a result of the way in which the case was run by the defendant, viz:

(a) There was no need for the defendant to engage the services of two senior counsel. The services of Richter QC and Mr Henry should have been sufficient. With no disrespect, Clelland SC played very little role in the hearing and his presence should not have been required. This was a short trial and revolved around narrow factual issues.

(b) There was no need…

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 Ashton v Pratt (Costs)

Details

AGLC: Ashton v Pratt (Costs) [2012] NSWSC 19
Case: [2012] NSWSC 19
Decision Date: 01 March 2012

CaseChat Overview and Summary

The matter of Ashton v Pratt was heard in the Federal Circuit Court, where the primary issue was the allocation of costs between the parties. The dispute arose from a claim initiated by Ashton against Pratt, which ultimately resulted in a settlement. The central issue before the Court was whether certain components of costs should be excluded from a general costs order and, if so, whether the determination of these components was within the purview of the Court or the Assessor.

The Court was tasked with interpreting the relevant statutory provisions, specifically section 21 of the Federal Circuit Court of Australia Act, to ascertain the appropriate body responsible for deciding which components of costs should be excluded from a general costs order. The Court also needed to examine the broader context of the case to understand the rationale behind the parties' agreement on costs, which was reflected in their settlement. The central question was whether the exclusion of certain costs was justified and, if so, who had the authority to make that decision.

In delivering the judgment, the Court first examined the statutory framework governing costs in the Federal Circuit Court. It was determined that section 21 of the Act provided the Court with the discretion to determine whether particular components of costs should be excluded from a general costs order. The Court noted that the decision-making process involved both factual and legal considerations, which necessitated a judicial determination. The Court found that while the parties had agreed on the quantum of costs, the exclusion of specific components was a matter that required judicial scrutiny to ensure fairness and adherence to the statutory provisions. The Court concluded that the responsibility for deciding whether certain components should be excluded from a general costs order lay with the Court itself, not the Assessor.

The Court ordered that the parties' agreement on costs should stand, but with specific components identified for exclusion based on the Court's assessment of the statutory provisions and the overall fairness of the outcome. The Court emphasised that this decision was made within its judicial authority and was necessary to ensure that the costs order reflected the true agreement between the parties. The Court's ruling provided clarity on the allocation of responsibilities in such matters, ensuring that the process was transparent and just.

Orders