Crosby v Fica (No 4) - [2018] NSWSC 632

Supreme Court

New South Wales

Medium Neutral Citation: Crosby v Fica (No 4) [2018] NSWSC 632
Hearing dates: 3 May 2018
Date of orders: 10 May 2018
Decision date: 10 May 2018
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
Application to vary orders of the Court dismissed

Catchwords:
CIVIL PROCEDURE – costs – solicitor-client costs – gross sum costs order – where application made by plaintiff’s solicitor for variation of final orders – where application seeks dispensation of final orders requiring that solicitor-client costs be assessed before a gross sum assessment can be made – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – whether the court has jurisdiction to make the substantive variations to final orders sought – plaintiff’s solicitor has no standing to make application – not in plaintiff’s best interests to dispense with requirement for full assessment of solicitor-client costs
SOLICITORS – duties – application for gross sum costs order – application to dispense with order requiring assessment of solicitor-client costs
Legislation Cited: Legal Profession Uniform Law 2014 (NSW), ss 174(1), 175(2), 178, 204(2).
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)
Cases Cited: Bechara v Bates [2016] NSWCA 294
Katter v Melham (2015) 90 NSWLR 164
Category: Consequential orders (other than Costs)
Parties: Dasha Crosby by her tutor Olga Crosby (Plaintiff)
Juan Fica (Defendant)
Representation:
Counsel:
FFF Salama (Plaintiff)
Solicitor:
SAS Lawyers (Plaintiff)

File Number(s): 2016/269892
Publication restriction: Nil

Judgment

This family provision application, concerning the estate of the father of the plaintiff (Dasha), was heard at the same time as another application for family provision out of the estate by two of Dasha’s half-sisters (Susana and Gemma). In December 2017 I delivered my decision (published as [2017] NSWSC 1769) on both applications. I have since delivered a second decision (unpublished) and a third decision (published as [2018] NSWSC 385) in which I determined the form in which provision should be made, and costs.
The present application arises out of liberty to apply which I granted in the orders I made in these proceedings as part of my third decision.
The parties and their claims were described in my first decision at [1]-[9]. The reasons which I gave for making the orders in question appear in my third decision at [12]-[26] and the actual orders were set out at [43]. What follows assumes familiarity with, and uses the same abbreviations as are used in, those parts of my decisions.
Relevantly for present purposes, I included in the terms of the trust covering the provision in favour of Dasha a provision permitting the trustee (Dasha’s mother, Olga, who is her tutor in these proceedings) to apply the capital of the trust towards paying her costs as tutor, to the extent not recovered pursuant to the party-party costs order made in favour of Dasha, but only if those costs were first assessed on a solicitor-client basis (order 1(c)). I also ordered that Dasha’s solicitor (SAS) make application for such an assessment (order 4).…

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: [2018] NSWSC 632
Decision Date: 10 May 2018

CaseChat Overview and Summary

In Crosby v Fica, the dispute centred around the allocation of costs between the parties, specifically the solicitor-client costs and the gross sum costs order. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought a variation of the final orders that had been made in the proceedings, particularly the order that required the assessment of solicitor-client costs before a gross sum assessment could be made. The plaintiff's solicitor applied for the court to dispense with this requirement, arguing for a gross sum costs order without the necessity of a prior assessment of the solicitor-client costs.

The legal issues before the court were whether it had jurisdiction to make the substantive variations to the final orders sought by the plaintiff's solicitor, and whether it was in the best interests of the plaintiff to dispense with the requirement for a full assessment of the solicitor-client costs. The court was also required to determine if the plaintiff's solicitor had the standing to make such an application. The court examined the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW), particularly rule 36.16(3A), which governs the assessment of costs.

The court found that it did not have the jurisdiction to make the substantive variations sought by the plaintiff's solicitor, as the application was made after the final orders had been made. Furthermore, the court held that the plaintiff's solicitor did not have standing to make the application, and that it was not in the best interests of the plaintiff to dispense with the requirement for a full assessment of the solicitor-client costs. The court emphasised the importance of ensuring that costs are fairly allocated between parties in litigation, and that the assessment of solicitor-client costs is a crucial part of this process. Consequently, the application for the variation of the final orders was dismissed.

The court's decision underscored the importance of adhering to procedural rules and the need for a full assessment of costs in litigation. The ruling confirmed that the plaintiff's solicitor did not have the standing to make the application for the variation of the final orders, and that the plaintiff's best interests were best served by ensuring that all costs were properly assessed. The court's decision provided clarity on the application of the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW) and reinforced the principles of fairness and transparency in the allocation of costs in litigation.

Orders