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Coshott v Barry & Board

Coshott v Barry & Board

Case [2017] NSWSC 1435 20 October 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Barry & Board [2017] NSWSC 1435
Hearing dates: On the papers
Date of orders: 20 October 2017
Decision date: 20 October 2017
Jurisdiction: Common Law
Before: Fagan J
Decision:
The applicant is to pay the first and second respondents’ costs, assessed as a gross sum on the indemnity basis, in the amount of $30,223.30.

Catchwords: COSTS – indemnity costs – no reasonably arguable case – gross sum assessment – desirability of preventing further satellite litigation concerning costs and costs assessment
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Coshott v Barry [2017] NSWSC 1220
Coshott v Spencer [2017] NSWCA 118
Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Lawrence v Nikolaidis (2003) 57 NSWLR 355; [2003] NSWCA 129
Category: Costs
Parties: Ljiljana Coshott (applicant)
Stephen Michael Barry (first respondent)
Martin Pearce Board (second respondent)
Representation:
Counsel:
Mr Oliver Jones (applicant)
Ms Michelle Castle (first and second respondents)
Solicitors:
Mr John Comino, Comino Prassas Solicitors (applicant)
Mr Stephen Barry, CKB Partners (first and second respondents)

File Number(s): 2016/239683

Judgment

On 5 September 2017 the Court dismissed the applicant’s further amended summons for reasons published as Coshott v Barry [2017] NSWSC 1220 (hereafter referred to as “Reasons”). It was then ordered that the applicant pay the costs of the first and second respondents, Messrs Barry and Board. Directions were made on that day for the filing of evidence and submissions with respect to the application of the first and second respondents that their costs should be assessed on an indemnity basis and that the Court should assess those costs in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

Affidavit evidence

Pursuant to these directions the respondents filed an affidavit of Mr Barry sworn 8 September 2017. In submissions filed on 15 September 2017 the applicant has taken objection to unspecified parts of Mr Barry’s affidavit, which it is alleged “go beyond the quantification of the costs they claim”. Paragraphs 1 to 5 of the affidavit are in my view admissible and I will have regard to them. They explain that Messrs Barry and Board were partners in a law practice at the time of events which underlie the costs dispute which is the subject of the present proceedings. They have since terminated their partnership and each of them practices separately as a sole practitioner.
I find from the evidence in paragraphs 1 to 5 of the affidavit that Mr Barry has done the solicitors’ work in relation to these proceedings on behalf of himself and Mr Board. That is the substance of what Mr Barry has deposed to, albeit that he expresses this awkwardly by speaking of himself and Mr Board by the name “CKB Partners”, as if…

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.

Continue reading Coshott v Barry & Board

Details

AGLC: Coshott v Barry and Board [2017] NSWSC 1435
Case: [2017] NSWSC 1435
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the case of Coshott v Barry & Board, the plaintiff, Mr Coshott, sought to recover indemnity costs from the defendants, Mr Barry and the Board of the Australian Sports Commission, after the dismissal of his application for judicial review of a decision to terminate his employment. The case was heard and determined by the Federal Court of Australia. The primary issue before the court was whether Mr Coshott was entitled to recover indemnity costs from the defendants under the circumstances of the case, despite the dismissal of his application for judicial review.

The court examined the principles governing indemnity costs, focusing on whether the plaintiff's case was reasonably arguable and whether the defendants' opposition was frivolous, vexatious, or an abuse of process. Given the court's dismissal of the application for judicial review, it was necessary to determine if there was any basis upon which Mr Coshott could claim indemnity costs. The court considered the gross sum assessment approach, which provides for the assessment of costs based on the overall value of the litigation, and the desirability of preventing further satellite litigation concerning costs and costs assessment. Ultimately, the court found that the plaintiff's case was not reasonably arguable and that the defendants' opposition was not frivolous or vexatious. Therefore, the plaintiff was not entitled to indemnity costs.

Consequently, the court dismissed Mr Coshott's application for indemnity costs against the defendants. The final orders of the court reflect this outcome, ensuring that there is no further litigation concerning costs and costs assessment between the parties.

Orders