Ghosh v Miller (No 2)

[2015] NSWSC 1287

Supreme Court

New South Wales

Medium Neutral Citation:

Ghosh v Miller (No 2) [2015] NSWSC 1287

Hearing dates:

3 August 2015

Date of orders:

03 August 2015

Decision date:

03 August 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) Direct the plaintiff to file and serve her affidavit pursuant to rule 50.14 of the Uniform Civil Procedure Rules (UCPR) on or before 19.09.15, including a copy of the transcript of the proceedings in Local Court proceedings 14/017072, for the dates 13.10.14, 27.10.14, 03.11.14, 17.11.14, 01.12.14 and 08.12.14.

 

(2) Direct the defendant to file and serve his affidavits in reply on or before 16.10.15. Note: the defendant filed and served the affidavit of Anthony Patrick Maher dated 07.04.15 pursuant to rule 50.14 of the UCPR.

 

(3)   Direct the plaintiff to file and serve written submissions in support of her appeal and application for leave to appeal on or before 30.10.15.

 

(4)   Direct the defendant to file and serve written submissions on or before 13.11.15.

 

(5)   Direct the plaintiff to file and serve any submissions in reply on or before 20.11.15.

 

(6)   Direct the parties to file a joint Court Book seven days before the hearing.

 

(7)   The matter is listed before a Registrar on Friday, 23.10.15, at 9:00am for directions and to obtain a hearing date.

 

(8)   Dismiss prayers 1 and 2 of the Plaintiff’s notice of motion filed on 20.07.15.

 

(9)   Adjourn prayers 3 and 4 of the plaintiff’s notice of motion filed on 20.07.15 to 23.10.15.

 

(10) Grant liberty to apply on three days’ notice.

 

(11)  Prayers 2, 3 and 4 of the Plaintiff’s notice of motion filed on 12.05.15 be adjourned until 23.10.15 at 9:00am before the Registrar.

 (12)  Order that the plaintiff pay the defendant's costs of this morning limited to one hour of counsel's time in attending.

Catchwords:

Gross sum costs – application to set aside – no question of principle.

Legislation Cited:

- Civil Procedure Act 2005 – s 98

Cases Cited:

- Coshott v Parker & Collins as Executors of the Estate of the late Michael Petrovic Lenin (No 2) [2015] NSWSC 1,020
- Ghosh v Miller – NSWSC unreported 23 June 2015
- Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738

Category:

Costs

Parties:

Dr Ratna Ghosh (Plaintiff)
Rodney Miller (Defendant)Interlocutory application

Representation:

Counsel:
In person (Plaintiff)
M.W.E. Maconachie (Defendant)

  Solicitors:
In person (Plaintiff)
Higgins & Dix (Defendant)

File Number(s):

2015/333115

Judgment (revised from ex tempore)

1. On 17 July 2015, I made an order that the plaintiff, Dr Ghosh, pay the defendant the sum of $10,000 inclusive of GST. That order was a gross sum cost order made pursuant to s 98(4)(c) of the Civil Procedure Act 2005.

2. The order was made as a consequence of an earlier set of orders made on 23 June 2015 which arose out of the plaintiff, Dr Ghosh's, non-compliance with orders made by Button J on 18 May 2015. Because of the circumstances surrounding that non-compliance, I had on that date ordered that Dr Ghosh pay certain costs of the proceedings on an indemnity basis (see Ghosh v Miller unreported 23 June 2015).

3. The order of 17 July 2015 was an order effectively quantifying that cost order. Between the two judgments, a regime was put in place for the service of the material concerning the cost charged to the plaintiff upon Dr Ghosh. I add that on the two applications Dr Ghosh had been represented by counsel.

4. Dr Ghosh has now filed a notice of motion. Prayers one and two of the notice of motion seek orders setting aside the orders made on 23 June 2015 and on 17 July 2015.

5. However, when the matter was referred to me, Dr Ghosh confined her application to setting aside the making of the lump sum costs order on 17 July 2015. She advanced a number of bases for doing so.

6. The first was that it was said that it is not appropriate to make a lump sum costs order where an earlier order for indemnity costs had been so ordered. I will pass over the issue as to whether that might represent a basis for setting aside a judgment that was entered following a contest.

7. The authority cited by Dr Ghosh for that proposition is Coshott v Parker & Collins as Executors of the Estate of the late Michael Petrovic Lenin (No 2) [2015] NSWSC 1,020 at 17 per Davies J (“Coshott”). However, it is clear that the reference by his Honour to a concern about making a lump sum costs order arose out of a potential that the making of the two orders at the same time may seem to be mutually inconsistent. In Coshott his Honour referred to the principles discussed in Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [21] to [22]. Nothing in the passage referred to in Harrison v Schipp precludes the course that was taken by me in the two judgments to which I have referred. The gross sum costs order did contain a discount on the amount that was charged to Mr Miller.

8. A number of other bases were advanced by Dr Ghosh for setting aside the order. They included complaints that the bill was not reasonable because no receipts were attached, a complaint that an excessive amount was charged for an ex parte hearing at which Dr Ghosh had said she was unavailable, the amount charged by junior counsel was excessive, and also that the inclusion of an amount for personal service was also not authorised or excessive. In relation to that latter matter, I note that I have already found that the reason the personal service was undertaken is because that is what Dr Ghosh had herself insisted upon.

9. In any event, these are all matters that either were agitated when the matter was previously determined, or at the very least were able to agitated when the matter was previously determined. They were certainly issues that do not even rise to the threshold for consideration as a basis to set aside an order made in respect of a judgment that followed a contested hearing. None of the matters raised warrant the setting aside.

10. Accordingly, I dismiss prayers one and two of Dr Ghosh's notice of motion filed on 20 July 2015.

11. In respect of prayers three and four, it will be a matter for Dr Ghosh as to whether she wishes to pursue those matters before the Registrar. They do not need to occupy the time of a judge of this division.

********

Decision last updated: 15 September 2015