Gabrielle v Abood (No 4)

[2023] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gabrielle v Abood (No 4) [2023] NSWCA 100

Hearing dates:

On the papers (papers finalised 5 May 2023)

Date of orders:

18 May 2023

Decision date:

18 May 2023

Before:

Bell CJ; Kirk JA; Adamson JA at [1]

Decision:

The costs of the second and third respondents are assessed, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), in the gross sum of $14,300.00 (which amount includes the costs of applying for this gross sum costs order).

Catchwords:

CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Costs of seeking a gross sum assessment can also be assessed on a gross sum basis – Discount of 30% applied to professional fees – Assessed gross sum of $14,300.00

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-58, 98(4)(c)

Conveyancing Act 1919 (NSW), s 66G

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Gabrielle v Abood (No 3) [2023] NSWCA 29

Hamod v New South Wales [2011] NSWCA 375

Category:

Consequential orders

Parties:

Chakib Carlo Gabrielle (Applicant)
Rima Abood (First Respondent)
Sean Magnus Wengel (Second Respondent)
Michael Craig Brereton (Third Respondent)

Representation:

Advocates:
D Radman, solicitor (Second and Third Respondents)

Solicitors:
Grace Lawyers (Second and Third Respondents)

File Number(s):

2022/228004

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2022] NSWSC 912

Date of Decision:

8 July 2022

Before:

Hammerschlag CJ in Eq

File Number(s):

2021/233613

Judgment

1. THE COURT: This proceeding involved an application for leave to appeal which was refused on 23 February 2023: Gabrielle v Abood (No 3) [2023] NSWCA 29. The first respondent had obtained orders from the Supreme Court for the appointment of trustees for sale of a property she jointly owned with her brother, the applicant for leave to appeal, pursuant to s 66G of the Conveyancing Act 1919 (NSW). The second and third respondents are the trustees who had been appointed by the Supreme Court to effect the sale (the Trustees). The application for leave to appeal was refused and the Court ordered that the applicant pay the respondents’ costs. The Trustees were represented during the course of the proceedings by a firm of solicitors, Grace Lawyers, one of whose number appeared at the hearing of the leave application. The Trustees now seek a gross sum costs order for their costs.

2. In the judgment addressing the application for leave to appeal, Kirk JA, with whom the other two members of the Court agreed, said the following:

[21] The second and third respondents – the trustees for sale – sought an order to the effect that their costs of this appeal be taken from the costs of sale of the property. The first respondent opposed that application, noting that order 3(d) made below provided that the trustees were to pay out of the proceeds of…