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Bobb v Wombat Securities Pty Ltd (No 2)

Bobb v Wombat Securities Pty Ltd (No 2)

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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 92
Category: 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…

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.

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Details

Case: [2013] NSWSC 863
Decision Date: 27 June 2013

CaseChat Overview and Summary

Bobb v Wombat Securities Pty Ltd (No 2) was a case before the Federal Court of Australia, involving the plaintiff, Bobb, and the defendant, Wombat Securities Pty Ltd. The dispute centred around a claim for costs associated with the legal proceedings. Bobb sought a lump sum costs order, which is a fixed amount of money awarded to cover legal expenses, despite the costs claimed being relatively modest. The court had to consider whether to grant this order, given the existing doubts about Wombat Securities' capacity to pay and the ongoing dispute between the parties regarding the assessment of costs.

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.

Orders