El-Hanania v Benyamin

[2019] NSWSC 1830

Supreme Court

New South Wales

Medium Neutral Citation:	El-Hanania v Benyamin [2019] NSWSC 1830
Hearing dates:	On the papers
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), that the costs which the plaintiff was ordered to pay the first defendant be paid in the gross sum of $21,000. (2) Order the plaintiff to pay the first defendant’s costs of her application under s 98(4) of the Civil Procedure Act 2005 (NSW) in the gross sum of $3,200.
Catchwords:	COSTS – application for costs order to be paid in gross sum – evidence in support of gross sum from expert costs assessor – rounded-down sum ordered as asked – order that costs of application also be paid in gross sum
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98
Category:	Costs
Parties:	Saba El-Hanania (Plaintiff) Christina Benyamin (First Defendant) John Sharpe (Second Defendant)
Representation:	Counsel: A Duc (Plaintiff) R Goodridge (First Defendant)   Solicitors: Saba Lawyers (Plaintiff) Firths The Compensation Lawyers (First Defendant)
File Number(s):	2019/110567

Judgment

Introduction

1. By summons filed on 9 April 2019, Saba El-Hanania, the plaintiff, sought orders which included orders setting aside certificates issued by John Sharpe, the second defendant (the Costs Assessor) in respect of costs the subject of an order made by Pembroke J on 10 May 2018 in favour of Christina Benyamin, the first defendant. The hearing of the matter commenced before me on 14 November 2019. During a short adjournment, the matter was resolved by consent orders dismissing the summons and ordering the plaintiff to pay the first defendant’s costs.

2. I noted that the plaintiff accepted that he had not served the Costs Assessor. Because of the way in which the proceedings were resolved, it was not necessary that the matter be adjourned to permit the Costs Assessor to be served. Had the Costs Assessor been served, it would have been expected that the Costs Assessor would have filed a submitting appearance.

Circumstances in which application for gross sum costs order was made

3. I granted liberty to the first defendant to apply for an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that costs be paid in a gross sum (the gross sum costs order). Before adjourning on 14 November 2019, having made the orders referred to above, I made directions for a timetable for submissions and evidence in relation to the first defendant’s application for a gross sum costs order. The first defendant, in accordance with the timetable, served and provided to my Associate an affidavit of Stephen Firth sworn 21 November 2019 in support of her application for a gross sum costs order. The plaintiff has chosen not to serve evidence or make submissions in response to the application.

Consideration

4. I am persuaded that the making of a gross sum costs order is an appropriate course in the present case because the sum at issue is relatively small and the substantive matter concerned only costs. To the extent possible between these parties who were, once, solicitor and client, there ought be an end to litigation. I see no utility in prolonging the disputes between them for the period of a costs assessment, the costs of which would be disproportionate and the delay in relation to which would be relatively significant.

5. Mr Firth has attached to his affidavit a statement of Sharon Drew, Principal of Blue Ribbon Legal Costing whom he asked to provide an expert opinion on the amount of costs which would be recovered by the first defendant in these proceedings if the costs dispute were to proceed to assessment.

6. Ms Drew is a solicitor who has been specialising in legal costs since 1999. Not only has she drafted hundreds of bills of costs for the purposes of the NSW assessment scheme, but she also has experience in taxations in the Federal Court and High Court. She has been a member of the Law Society of New South Wales’s cost committee. I am satisfied that she is an expert in costs assessment. In her opinion the amount which the first defendant would recover on assessment up to and including 14 November 2019, being the date on which I made the consent orders referred to above, would be $21,089.71, comprising professional fees of $11,698.50, counsel’s fees of $9,130 and disbursements of $261.21. Ms Drew has set out in detail what she has taken into account and her reasoning process. She has outlined the hourly rates for various professionals and other staff involved and assessed the reasonable hours spent. She has excluded from her calculations any review by one member of staff of another’s work.

7. Further, Ms Drew opined as follows:

“In my opinion, a further global discount is not required in these circumstances as the costs referred to at paragraph 60 above [the professional fees] reflect a significant reduction from the fixed fee agreement, and only those costs considered fair and reasonable on a court-ordered or inter partes basis have been included. No further moderation is required which may otherwise be the case to arrive at a lump sum for costs where the starting point is the solicitor/client fees invoiced.”

8. Ms Drew listed the disbursements incurred by the first defendant and discounted them as would occur on an assessment to arrive at the figure of $9,130 for counsel’s fees.

9. Ms Drew has also included a comparison between the costs of the gross sum costs application and the expected costs of a costs assessment. The results of this comparison reflect my understanding that costs of a costs assessment are generally higher than for a gross sum costs application and the delay in obtaining a result is also significantly greater.

10. As well as providing her opinion as to the costs on assessment of the first defendant’s costs of the proceedings, Ms Drew has also, as referred to above, set out what she expects would be the costs of this current application. In the interests of finality, I propose to make a gross sum costs order in relation to the costs of the application. The plaintiff has been accorded procedural fairness in this process, having been given an opportunity to provide a response to Mr Firth’s affidavit, but having chosen not to.

11. I accept Ms Drew’s unchallenged opinion that it is not necessary to apply a global discount to the fees claimed by the first defendant in the application because she had assessed the costs to be reasonable on the basis set out and has already deducted some matters on the basis that they would not be allowed on assessment. However, I propose to round down the sum which she has assessed because of the nature of a gross sum costs order.

12. As to the costs of the gross sum costs application, I am persuaded that the amounts specified by Ms Drew for drafting Mr Firth’s affidavit ($1,320), filing and serving the affidavit ($33) and her expert report ($1,925) ought be included in the figure allowed. As the plaintiff has chosen not to put on any response, the amounts allowed for responses need not be included. This total amount will be rounded down on the same basis as the gross sum for the proceedings.

Orders

13. For the reasons set out above, I make the following orders:

1. Order, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), that the costs which the plaintiff was ordered to pay the first defendant be paid in the gross sum of $21,000.

2. Order the plaintiff to pay the first defendant’s costs of her application under s 98(4) of the Civil Procedure Act 2005 (NSW) in the gross sum of $3,200.

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Decision last updated: 18 December 2019