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Deighton v Dewit

Deighton v Dewit

Case [2021] NSWSC 852 13 July 2021

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Deighton v Dewit [2021] NSWSC 852
Hearing dates: 13 July 2021
Date of orders: 13 July 2021
Decision date: 13 July 2021
Jurisdiction: Common Law
Before: Wright J
Decision:
Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the amount of the costs ordered to be paid in Order 2 made on 11 December 2020 is $10,000.

Catchwords:
COSTS – Party/Party – Specific court rules in relation to costs – Civil Procedure Act 2005 (NSW), s 98(4)(c) – where specified gross sum costs order is sought – where discount is applied to costs order
COSTS – Party/Party – Application for gross sum costs order – where costs of assessment would be disproportionate

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c).

Cases Cited:
AuspineLtd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160
Dye v Commonwealth Securities Ltd (No. 2) [2012] FCA 407
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison & Anor v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the matter of GTH Equipment Pty Ltd [2017] NSWSC 1816
Ireland v Retallack (No 2) [2011] NSWSC 1096
Pritchard v Fryer (No 2) [2018] NSWSC 261
Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 99

Category: Costs
Parties: Alyn (Alan) Deighton (Plaintiff)
Johannes Frederick Dewit (Defendant)
Representation:
Counsel:
G Barter (Plaintiff)
D Baran (Defendant)
Solicitors:
Slater and Gordon (Applicant)
Turnbull Hill (Respondent)

File Number(s): 2020/00301955

EX TEMPORE Judgment (REVISED)

On 21 October 2020 the plaintiff, Mr Deighton, filed a motion seeking a freezing order in relation to a claim for damages for injuries allegedly suffered as a result of sexual assaults by the defendant, Mr Dewit, on the plaintiff between 1987 and 1989.
The Court heard the matter on 11 December 2020 and found in favour of the defendant in relation to the application for the freezing order. On that occasion the following orders were made:

“(1) The notice of motion filed on 21 October 2020 is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the motion, such costs to be payable forthwith.
(3) The Court grants liberty to the defendant to apply for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) on two days’ notice.”

There has been no appeal from those orders.
The defendant has now made an application for the costs to be dealt with by way of a gross sum costs order and has provided an affidavit from Mr Cameron Duncan, solicitor, setting out the amount of the costs sought.
The solicitor for the plaintiff has also affirmed an affidavit in relation to this application for the gross sum costs order and it is disclosed in that affidavit that…

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 Deighton v Dewit

Details

AGLC: Deighton v Dewit [2021] NSWSC 852
Case: [2021] NSWSC 852
Decision Date: 13 July 2021

CaseChat Overview and Summary

The case of Deighton v Dewit involved a dispute between the plaintiff, Deighton, and the defendant, Dewit, concerning costs incurred in the proceedings. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought a costs order under the Civil Procedure Act 2005 (NSW), arguing for a gross sum costs order due to the disproportionate cost of assessing itemised costs. The defendant, on the other hand, contested the application, raising concerns about the application of a discount to the gross sum costs order.

The primary legal issue before the court was whether the plaintiff was entitled to a gross sum costs order in lieu of an itemised assessment of costs, and if so, whether a discount should be applied to the amount sought. The court had to consider the provisions of the Civil Procedure Act 2005 (NSW), particularly section 98(4)(c), which allows for a specified gross sum costs order when the costs of assessment would be disproportionate. The court also needed to assess the appropriateness of applying a discount to the gross sum sought by the plaintiff.

The court found that the costs of assessing the itemised costs would indeed be disproportionate, thus justifying the grant of a gross sum costs order. However, the court also determined that a discount should be applied to the gross sum sought by the plaintiff. The discount was considered necessary to ensure that the order was fair and reasonable, taking into account the factors relevant to the case, including the complexity and duration of the proceedings. Consequently, the court made a specific order for costs in a reduced gross sum, reflecting both the disproportionate nature of itemised assessment and the need for a fair outcome.

The final orders of the court provided for the plaintiff to receive a gross sum costs order, albeit at a discounted rate, reflecting the court's careful consideration of the relevant statutory provisions and the specific circumstances of the case. This decision ensures that the plaintiff's costs are addressed in a manner that is both efficient and fair, while also respecting the statutory framework governing costs orders in the Supreme Court of New South Wales.

Orders