Commonwealth Bank of Australia v Forbat

[2005] NSWSC 1075

CITATION:	Commonwealth Bank of Australia v Forbat [2005] NSWSC 1075 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 October 2005
JUDGMENT DATE :	20 October 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order that the plaintiff pay the unrepresented first defendant's costs on the ordinary basis.

CATCHWORDS:	PROCEDURE [548] - Costs - Jurisdiction - Costs indemnity only - Litigant in person - Whether litigant in person may recover costs of advice concerning conduct of proceedings charged by lawyer who does not appear.
CASES CITED:	Cachia v Hanes (1991) 23 NSWLR 304; (1994) 179 CLR 403
PARTIES:	Commonwealth Bank of Australia (P) Stephen Forbat (D1) Australia and New Zealand Banking Group Limited (D2)
FILE NUMBER(S):	SC 4346/05
COUNSEL:	P J Dowdy (P) In person (D1) No appearance (D2)
SOLICITORS:	Henry Davis York (P) In person (D1) Deacons (D2)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 20 OCTOBER 2005

4346/05 COMMONWEALTH BANK OF AUSTRALIA v STEPHEN FORBAT

JUDGMENT - Dismissal of Proceedings and Costs

1 HIS HONOUR: The plaintiff, the Commonwealth Bank of Australia, no longer wishes to pursue injunctive relief against the first defendant, Stephen Forbat, who appears in person. It does not seek an extension of that injunctive relief when it expires in a few days time and, furthermore, asks for its discharge as of today. It also indicates that it does not in any way wish to conduct the proceedings further and the proceedings will accordingly be dismissed.

2 Mr Forbat asks for an order for costs on the indemnity basis. I do not think on the material before me, including the matters which Mr Forbat has put to me in address and which I take to be factual for the purposes only of the indemnity costs application, there is any basis for an order for indemnity costs. I shall not make an order for costs on the indemnity basis.

3 Mr Forbat has conducted these proceedings as a litigant in person. This means that, in general terms, he is not entitled to legal costs. Mr Dowdy, of counsel for the plaintiff, has submitted that no order for costs should be made, on the basis that it does not appear that Mr Forbat incurred any costs. However, in response to that Mr Forbat has done two things: he has stated, which is not doubted, that he paid a filing fee for a notice of motion. He is, of course, entitled to recover any other necessary expenses: see Cachia v Hanes (1991) 23 NSWLR 304; (1994) 179 CLR 403.

4 Secondly, what is novel about this case is that Mr Forbat has tendered a letter from Paul Bard Lawyers, which will be marked as an exhibit, with Mr Forbat’s acceptance endorsed on it, which constitutes an agreement for legal services by way of assisting “you in preparing your evidence and managing the conduct of the proceedings brought against you by the Commonwealth Bank of Australia”. Mr Forbat informs the Court that Mr Bard did work under that agreement and that at least one instance of that work was his settling documents, which Mr Forbat had prepared for use in the proceedings.

5 Mr Dowdy has submitted that out of court work of this nature should not be allowable as legal costs, but that is a matter that is not at all clear to me. Indeed, it appears to me, having had a quick look at the books, a matter which is quite novel. It may be that the cost of those services is recoverable, either as legal costs incurred in the conduct of the proceedings, although the solicitor did not appear or go on the record; or it is possible that an alternative head of claim may be “as a necessary and proper disbursement for the purpose of the conduct of the proceedings”, even if not strictly legal costs in the proceedings.

6 As it is now plain, by reason of the filing fee for the motion, that there is in any event some basis for an order for costs, it is my view that the appropriate course in all the circumstances is for me to order the plaintiff to pay the first defendant’s costs on the ordinary basis and for the question of what should be allowed in relation to Paul Bard’s charges to be determined, in the first instance, unless agreement can be reached, by a costs assessor proceeding to an assessment of those costs.

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10/11/2005 - Typographical error in file number - Paragraph(s) Heading