Chateau Constructions (Aust) Ltd v Zepinic - [2013] NSWSC 909

Supreme Court

New South Wales

Case Title: Chateau Constructions (Aust) Limited v Zepinic

Medium Neutral Citation: [2013] NSWSC 909

Hearing Date(s): 5 July 2013

Decision Date: 05 July 2013

Jurisdiction: Equity Division

Before: Robb J

Decision:
The Court makes orders 1, 3 and 4 of the Notice of Motion, and an order that the defendants pay to the plaintiff the costs of the Notice of Motion fixed on a gross sum basis at $26,722.13.

Catchwords: COSTS - assessment - interest - after judgment s 101(4) Civil Procedure Act 2005 (NSW)
COSTS - Court has discretion to order a specified gross sum of costs (s 98(4)(c) Civil Procedure Act 2005) - discount for possibility that assessment will not allow all costs

Legislation Cited: Civil Procedure Act 2005 (NSW)

Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375
Joseph Lahoud v Victor Lahoud [2006] NSWSC 126
Timms v Commonwealth Bank of Australia (No 3) [2004] NSWCA 25

Category: Costs

Parties: Chateau Constructions (Aust) Limited (Applicant)
Milla Zepinic (First respondent)
Vito Zepinic (Second respondent)

Representation

- Counsel: Counsel:
B Ilkovski (Applicant)
Second respondent in person

- Solicitors: Solicitors:
Toomey Pegg Drevikovsky (Applicant)

File Number(s): SC 2009/290598

Publication Restriction: Nil

EX TEMPORE JUDGMENT

HIS HONOUR: The plaintiff moves on a notice of motion filed on 13 March 2013 seeking orders for interest on costs that have already been assessed, the application being made under s 101(4) of the Civil Procedure Act 2005 (NSW) and also an order under s 98(4)(c) of the Civil Procedure Act for a specified gross sum fixed by this Court in relation to the costs of the notice of motion. The plaintiff also seeks in paragraphs 3 and 4 of its notice of motion a further order under s 101(4) in respect of any costs of a gross sum nature which the Court fixes in relation to the notice of motion itself.
For the reasons which follow, the Court will make order 1 in the notice of motion. It will make order 2 in the notice of motion on the basis that the gross sum will be 75 per cent of the total amount of the costs of the plaintiff in prosecuting the notice of motion, which the evidence establishes was $35,629.50. The Court will also make orders 3 and 4 of the notice of motion.
In this matter the plaintiff originally sought to extend a caveat to secure money owed to the plaintiff under a judgment of the Consumer, Trader and Tenancy Tribunal. That judgment was made in relation to progress claims made by the plaintiff against the defendants in relation to a residential construction contract in relation to premises at Turramurra in the State of New South Wales.
In April 2010 Slattery J made an order for sale of the property. The evidence that is before the Court is in the form of an affidavit by the solicitor for the plaintiff, Mr Andrew Loel, sworn 13 March 2013. It is not necessary that I recount…

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 909
Decision Date: 05 July 2013

CaseChat Overview and Summary

In this case, the plaintiff, Chateau Constructions (Aust) Ltd, sought an assessment of costs in relation to a dispute with the defendant, Zepinic. The parties had previously entered into a building contract, and the plaintiff had obtained a judgment against the defendant for unpaid amounts. The court was required to determine the appropriate costs to be awarded to the plaintiff, including interest on those costs after the judgment was entered.

The primary issue before the court was whether it should order the defendant to pay a specified gross sum of costs, as permitted by section 98(4)(c) of the Civil Procedure Act 2005 (NSW). Additionally, the court had to consider whether to allow a discount on the gross sum due to the possibility that the assessment might not permit the plaintiff to recover all of their costs. The court also needed to decide on the appropriate amount of interest to be awarded on the costs after the judgment.

The court held that it had the discretion to order a specified gross sum of costs under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). It considered the possibility that the assessment might not allow the plaintiff to recover all of their costs, and therefore, it applied a discount to the gross sum. The court also determined the appropriate amount of interest to be awarded on the costs after the judgment, in accordance with section 101(4) of the Civil Procedure Act 2005 (NSW). The court found that the plaintiff was entitled to a specified gross sum of costs, less a discount for the possibility that the assessment would not allow all costs, and interest on those costs after the judgment.

Orders