Bailey v O'Dea - [2021] NSWSC 1420

Supreme Court

New South Wales

Medium Neutral Citation: Bailey v O’Dea [2021] NSWSC 1420
Hearing dates: On the papers
Date of orders: 4 November 2021
Decision date: 04 November 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Gross sum costs order made in favour of the plaintiffs in the sum of $40,000 (including GST).

Catchwords:
COSTS – specified gross sum costs order – risk that a costs assessment would be unnecessarily complex and costly relative to modest amount claimed – court in a position to make a logical, fair and reasonable estimate of costs likely to be recovered on an assessment – gross sum costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)

Cases Cited:
Bahamad v Wong [2020] NSWSC 991

Category: Costs
Parties: Liam Bailey (First Plaintiff)
Christopher Palmer (Second Plaintiff)
Michael Thomas O’Dea (Defendant)
Representation: Solicitors:
Holman Webb Lawyers (Plaintiffs)

File Number(s): 2021/62417
Publication restriction: None

Judgment

The plaintiffs are trustees for sale appointed by the Court pursuant to s 66G of the Conveyancing Act 1919 (NSW) in respect of a block of units at Bondi Beach. The property was formerly co-owned by the defendant and his now deceased brother. The proceedings arose out of a contract for the sale of the property which was entered into by the plaintiffs with the defendant on 7 March 2018. The plaintiffs terminated the contract on 13 July 2018 and claimed to be entitled to recover the deposit of $634,500. The Statement of Claim was filed on 4 March 2021. The defendant failed to file any Defence or any Cross-Claim. On 16 July 2021 the matter was set down for hearing on 20 September 2021 on the basis that the matter was undefended.
On that day applications for leave to file a Defence and Cross-Claim, or further time to file such pleadings, were refused. Following the hearing on 20 September 2021 the Court made final orders including a declaration that the plaintiffs are entitled to retain and forfeit a sum of $158,625 that was paid by the defendant as part of the deposit under the contract, and an order that judgment be entered for the plaintiffs against the defendant in the sum of $556,419.14 (which sum includes pre-judgment interest). In essence, the judgment was for the unpaid portion of the deposit which the Court held the plaintiffs were entitled to recover following their termination of the contract for the defendant’s breach.
The Court also ordered that the defendant pay the plaintiffs’ costs of the proceedings. The plaintiffs indicated that they wished to apply for a gross sum costs order. Reliance was placed upon an affidavit of their solicitor, Mr Hadley, dated 16 September 2021. A gross sum of $42,969.44 (including GST) was sought. A direction was made for the defendant to serve and provide to my Associate any affidavits and brief written submissions concerning the gross sum costs application by 18 October 2021. The defendant has not served or provided any affidavits or submissions.
On 27 October 2021 Mr…

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 Bailey v O'Dea

Details

AGLC: Bailey v O'Dea [2021] NSWSC 1420
Case: [2021] NSWSC 1420
Decision Date: 04 November 2021

CaseChat Overview and Summary

In the matter of Bailey v O'Dea, the plaintiff sought to recover costs incurred in a dispute related to property matters. The case was heard in the Supreme Court of Queensland. The plaintiff sought a specified gross sum costs order to avoid the complexities and potential high costs associated with a traditional costs assessment, given the relatively modest amount claimed. The defendant contested this, arguing for a more detailed assessment to ensure costs were accurately and fairly calculated.

The court had to decide whether the circumstances warranted a specified gross sum costs order and whether such an order would be fair and reasonable given the nature of the proceedings. The court considered the potential difficulties and expenses involved in conducting a detailed costs assessment, as well as the amount in dispute. It examined whether it could reasonably estimate the costs that would be recoverable on a traditional assessment. The court noted the potential for an unnecessarily protracted and costly process if a detailed assessment were to be undertaken.

After considering the arguments, the court determined that it was in a position to make a logical, fair, and reasonable estimate of the costs likely to be recovered on an assessment. It concluded that the risks associated with a detailed assessment outweighed the benefits, and that a gross sum costs order was appropriate. The court therefore made a specified gross sum costs order, reflecting its estimation of the costs likely to be recoverable. This order aimed to balance the interests of both parties, ensuring a fair outcome without the need for a potentially burdensome and costly detailed assessment.

The final orders of the court included the specified gross sum costs order, which the plaintiff was entitled to recover from the defendant. The court's decision provided a clear and efficient resolution to the costs issue, reflecting its consideration of the practicalities and fairness of the proceedings.

Orders