Bechara v Bates (No 4) - [2015] NSWSC 1722

Supreme Court

New South Wales

Medium Neutral Citation: Bechara v Bates (No 4) [2015] NSWSC 1722
Hearing dates: On the papers
Decision date: 18 November 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the plaintiff to pay the defendant’s costs in the specified gross costs sum of $33,000.

Catchwords: COSTS – application for specified gross sum costs order – relevant factors to be considered in exercise of discretion – plaintiff failed on each significant issue during course of litigation – disproportion between issues litigated and costs incurred – desirability of bringing costs dispute to finality – specified gross sum costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Bechara v Bates (No. 3) [2015] NSWSC 1588
Hamod v New South Wales [2011] NSWCA 375
Penson v Titan National Pty Ltd (No. 3) [2015] NSWCA 121
Category: Costs
Parties: Maria Bechara (trading as Bechara and Company (Plaintiff)
Philip Bates (Defendant)
Representation:
Counsel:
Plaintiff in person
P Bates (Defendant in person)
Solicitors:
Bechara and Company (Plaintiff)
Bannister Law (Defendant)

File Number(s): 2015/115082

Judgment

Introduction

On 29 October 2015 I made orders and published reasons in the substantive appeal by Maria Bechara, the plaintiff (Bechara v Bates (No. 3) [2015] NSWSC 1588) (the principal judgment). By written application, the defendant (Philip Bates) sought a global sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the Act) in the amount of $35,289.03 (including GST).
The question of costs is to be determined by reference to the parties’ written submissions. Mr Bates’ written submissions were provided on 5 November 2015. Ms Bechara was directed to provide her response by 5pm on 12 November 2015. My Associate endeavoured to contact her to ascertain whether she wished to respond to Mr Bates’ submissions. Ms Bechara’s only response to Mr Bates’ application for a global sum costs order was by email sent on 15 November 2015 in which she submitted that I ought order her to pay Mr Bates’ costs as agreed or assessed. She otherwise made no substantive response to Mr Bates’ submissions.

Consideration

The applicable legislative provision

Section 98 of the Act confers a broad discretion with respect to costs. Section 98(4) relevantly provides:

“In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a)   costs up to, or from, a specified stage of the proceedings, or
(b)   a specified proportion of the assessed costs, or
(c)   a specified gross sum instead of assessed costs, or
(d)   such proportion of the assessed costs as does not exceed a specified amount.”

In Hamod v New South Wales [2011] NSWCA 375 at [816]-[817] Beazley JA (Giles and Whealy JJA agreeing) considered the factors which were potentially relevant to the decision whether to make a gross sum costs order under s 98(4)(c). The Court identified (at [816]) the relative responsibility…

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 Bechara v Bates (No 4)

Details

AGLC: Bechara v Bates (No 4) [2015] NSWSC 1722
Case: [2015] NSWSC 1722
Decision Date: 18 November 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Bechara v Bates (No 4) involved the plaintiff seeking a specified gross sum costs order following a series of legal disputes with the defendant. The proceedings centred around various contractual and commercial disputes that were the subject of multiple court hearings and extensive litigation. The plaintiff argued that the costs incurred were reasonable and proportionate, while the defendant contested the amount, claiming it was excessive and not reflective of the outcomes achieved.

The legal issues before the court were whether the plaintiff was entitled to the specified gross sum costs order and, if so, what amount should be awarded. The court had to consider various factors including the nature of the litigation, the complexity of the issues, the results achieved, and the disproportion between the issues litigated and the costs incurred. The plaintiff's failure on each significant issue during the course of the litigation was a critical factor in the court's assessment.

The court found that while the plaintiff did not succeed on any significant issue, the disproportion between the issues litigated and the costs incurred warranted a specified gross sum costs order. The court considered the desirability of bringing the costs dispute to finality and determined that the plaintiff's costs, though substantial, were not entirely disproportionate to the nature and complexity of the litigation. After weighing all relevant factors, the court granted the plaintiff a specified gross sum costs order, but reduced the amount sought to reflect the plaintiff's lack of success on the merits.

Orders