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

1. 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.

2. 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.

3. 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.

4. 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 in detail the nature of the evidence given by Mr Loel in that affidavit. The Court is satisfied that the plaintiff duly and expeditiously prosecuted its application for assessment of costs.

5. As is deposed to by Mr Loel in paragraph 39 of his affidavit there is available to the plaintiff a first bill of costs in the amount of $133,455.38. That bill of costs is in relation to the costs of these Supreme Court proceedings. The costs assessor allowed approximately 83.2 per cent of the total claim made by the plaintiff. There are two other bills of costs. One is for $19,698.55. That is approximately 65 per cent of the amount claimed. The third bill of costs is for $3,269.42, which is approximately 61.4 per cent of the costs claimed by the plaintiff. The latter two bills of costs are related to the costs of the assessment itself rather than the costs of prosecuting the Supreme Court proceedings.

6. I digress by noting that in accordance with the principles laid down by the Court of Appeal in Hamod v State of New South Wales [2011] NSWCA 375, it is appropriate when a Court considers making a gross sum order in relation to costs that the Court give a discount to take account of the possibility that if the costs went to an assessment not all costs would be allowed.

7. Counsel for the plaintiff has submitted that it is appropriate for the Court to have regard primarily to the 83 per cent success rate of the plaintiff in relation to the assessment of costs concerning the Supreme Court proceedings rather than the other assessments which may involve extraneous considerations. The Court is of the view in the circumstances that it would be fair to generally accept the plaintiff's submission but to reduce the percentage allowance slightly to 75 per cent.

8. The Court notes that the plaintiff's claim for interest on costs is not precluded by reason that judgment for costs has been entered: see Timms v Commonwealth Bank of Australia (No 3) [2004] NSWCA 25 per Beazley JA at [11].

9. Mr Loel has provided to the Court detailed calculations of how the amount of interest, being $43,360.42 referred to in paragraph 1(a) of the notice of motion, has been calculated and also how the daily rate of $38.57 has been calculated. The Court is satisfied that the calculation is in accordance (though in a retrospective way) with the methodology laid down by Campbell J in Joseph Lahoud v Victor Lahoud [2006] NSWSC 126 in that Mr Loel has in relation to all of the individual accounts paid by the plaintiff applied the 83 per cent, or other figure as may be appropriate, as he set out in paragraph 39 of his affidavit, to each of the accounts.

10. In giving this ruling the Court accepts and follows the principles laid down by Campbell J in Lahoud at paragraphs 82 and 83 and accepts that the evidence establishes that the plaintiff has been out of pocket in relation to these legal fees and is entitled to be compensated accordingly.

11. The Court notes that Dr Zepinic appeared for part of the proceedings in the interests of the defendants. He objected to evidence being read or leave to file affidavits being given on the ground that the evidence had not been properly served upon him. He sought to challenge a ruling made by Nicholas J on 3 May 2013 in these proceedings whereby his Honour found as a fact that the defendants had been given proper notice of the notice of motion and the evidence that had been filed prior to 3 May 2013.

12. The Court declined to allow Dr Zepinic to challenge Nicholas J's ruling. The Court accepts, because it was acknowledged by Dr Zepinic, that he was offered the exhibits to the 3 May 2013 affidavit but declined to accept them on that date. In the circumstances the Court received the evidence. Dr Zepinic sought to cross-examine Mr Loel on grounds that were only intended to challenge the basis of Nicholas J's judgment and the Court ruled that he would not be given leave to cross-examine on that basis. Dr Zepinic absented himself from the proceedings at about 10.35 am and did not take further part.

13. In those circumstances the Court makes order 1 in the notice of motion filed 13 March 2013. Order 2 is the defendants pay to the plaintiff its costs of and incidental to this motion in an amount of 75 per cent of $35,629.50, the order will ultimately be the result of that calculation. The Court also makes orders 3 and 4 in the notice of motion.