Supreme Court
New South Wales
Medium Neutral Citation: Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Hearing dates: 27 June 2013 Decision date: 27 June 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Order that the plaintiff pay the first defendant's costs of the proceedings in the sum of $15,400.
Catchwords: LUMP SUM COSTS ORDER - costs claimed relatively modest - doubts about payer's capacity - parties already in dispute about costs assessment. Legislation Cited: - Civil Procedure Act 2005 Cases Cited: - Bobb v Wombat Securities Pty Ltd & Ors 2013 NSWSC 757
- In the matterr of Palladium Consulting Pty Ltd 2013 NSWSC 92Category: Costs Parties: Richard Bobb (Plaintiff)
Wombat Securities Pty Ltd (First Defendant)
Michael Eagle (Second Defendant)
Stephen John Lancken (Third Defendant)
Rosemary Workman (Fourth Defendant)Representation: Counsel:
D.K.L. Raphael (Plaintiff)
Ms M. Castle (First Defendant)
Submitting appearances (Second, Third and Fourth Defendants)
Solicitors:
Gells Lawyers (Plaintiff)
In Curia Lawyers (First Defendant)
I.V. Knight, Crown Solicitor (Second, Third and Fourth Defendants)
File Number(s): 2012/386562
ex tempore Judgment on costs
On 7 June 2013 I gave judgment dismissing the plaintiff's summons in these proceedings (Bobb v Wombat Securities Pty Ltd & Ors 2013 NSWSC 757 ("Bobb No 1")). At [47] of Bobb No 1, I stated that I was minded to order the plaintiff to pay the first defendant's costs, but I granted the parties seven days to file any submissions on that issue. Within that time the first defendant advised that it sought a lump sum costs order pursuant to s 98 of the Civil Procedure Act 2005. It filed a notice of motion to that effect which was returnable today. Both counsel addressed orally concerning that application.
In support of its notice of motion the first defendant read an affidavit from its solicitor in the proceedings, John Patrick Fleming, sworn 18 June 2013. He was retained in December 2012 after the plaintiff's appeal had been listed before Knox DCJ (see Bobb No 1 at [9]). Mr Fleming's affidavit annexes various accounts including counsel's fees. As at the date of his affidavit over $16,000 in professional fees and counsel's fees had been incurred. Mr Fleming estimates that by the time of the completion of this application that figure will have increased to just over $22,000.
Mr Fleming's affidavit also annexes material from which it can be concluded that there is a justifiable basis for concern about the plaintiff's financial position. It appears that he has a number of substantial judgments outstanding against him and that he has applied to pay at least some of them by instalments. Earlier this year a request was made on behalf of the first defendant that the plaintiff provide some financial information concerning his means, but it was not provided.
In his judgment, In the matter of Palladium Consulting Pty Ltd 2013 NSWSC 92, Black J noted that the power to make a lump sum costs order has been most commonly exercised…
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- Case
- [2013] NSWSC 863
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court addressed were whether a lump sum costs order was appropriate in light of the relatively modest costs claimed and whether it was justified to impose such an order when there were significant uncertainties about the payer's financial situation. The court also had to consider the implications of the existing dispute between the parties about the costs assessment and how this might affect the fairness and practicality of imposing a lump sum order.
The court found that while the costs claimed were not excessive, the circumstances warranted a lump sum costs order. The court acknowledged the concerns about Wombat Securities' capacity to pay but determined that the order was necessary to ensure that the costs were paid efficiently and without further protracted disputes. The court emphasised the importance of finality in legal proceedings and the need to avoid ongoing disputes over costs. The court's reasoning reflected a balance between ensuring that the successful party was adequately compensated for their legal expenses and being mindful of the financial constraints of the losing party.
The final orders included the grant of a lump sum costs order to Bobb. The court specified the amount to be paid and noted the ongoing concerns about Wombat Securities' ability to meet this obligation. The court also directed that further applications regarding costs would be considered in light of the financial circumstances of the parties.
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