Golden v Howard (No 2) - [2024] NSWSC 172

Supreme Court

New South Wales

Medium Neutral Citation: Golden v Howard (No 2) [2024] NSWSC 172
Hearing dates: On the papers
Date of orders: 28 February 2024
Decision date: 28 February 2024
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The plaintiff is to pay to the defendants the costs referred to in order 1 made on 6 December 2023, quantified in the sum of $15,000.00.

Catchwords:
COSTS – Gross sum costs order – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
Legal Profession Uniform Law Application Act 2014 (NSW)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Gabrielle v Abood (No 4) [2023] NSWCA 100
Hamod v State of New South Wales [2011] NSWCA 375

Category: Costs
Parties: Joseph Golden (Plaintiff/Respondent)
John Howard (Defendant 1/Applicant)
Tony Burke (Defendant 2/Applicant)
Representation:
Plaintiff/Respondent in person

Counsel:
V Thomas (Defendants/Applicants)
Solicitors:
Ashurst (Defendants/Applicants)

File Number(s): 2023/00076838

JUDGMENT

Introduction

On 6 December 2023, I made orders in these proceedings dealing with the question of costs relating to the judgment delivered on 22 November 2023[1] as follows:
1. Golden v Howard [2023] NSWSC 1418.

“The Court orders that:
1. The Plaintiff is to pay the Defendants’ costs of the Notice of Motion filed on 24 April 2023 insofar as it related to the application for summary dismissal, including the cost of the hearing on 21 August 23, and the cost of the proceedings generally apart from costs on the Notice of Motion filed 24 April 2023 relating to the application under the Vexatious Proceedings Act 2008 (NSW).
2. By 22 December 2023 the Defendants are to file and serve:
a. written submissions and supporting evidence in relation to the orders as to costs sought in prayers 6 and 7 of their Notice of Motion dated 24 April 2023 (Defendants’ Motion);

…
3. By 24 January 2024 the Plaintiff is to file and serve:
a. written submissions in relation to the orders as to costs sought in prayers 6 and 7 of the Defendants’ Motion; and

…
The Court notes that:
5. The parties agree that the gross sum costs application in prayers 6 and 7 of the Notice of Motion dated 24 April 2023 can be dealt with on the papers.”

This judgment deals with the defendants’ application for a gross sum costs order in respect of the costs referred to in order 1 made on 6 December 2023 (the Gross Sum Costs).
In compliance with order 2 made on 6 December 2023, the defendants filed and served an affidavit of Mr John Pavlakis affirmed on 21 December 2023 and written submissions dated 21 December 2023. From my review of the file, I could not find any affidavit or submissions filed by Mr Golden dealing with the issue of the Gross Sum Costs. Given the other material filed by Mr Golden in January 2024, it appeared to me that he did not wish to provide any evidence…

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 Golden v Howard (No 2)

Details

AGLC: Golden v Howard (No 2) [2024] NSWSC 172
Case: [2024] NSWSC 172
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of Golden v Howard (No 2) involved the plaintiff, Golden, and the defendant, Howard. The matter before the court was a dispute regarding costs, specifically a gross sum costs order. The case was heard in the Federal Court of Australia. Golden sought to recover costs under a gross sum order, arguing that the usual principles of taxation of costs did not apply. The court was tasked with determining whether the principles of taxation of costs should apply to this case and whether a gross sum costs order was appropriate.

The primary legal issue the court had to address was whether the usual principles of taxation of costs should apply to the gross sum costs order sought by Golden. This involved interpreting the relevant legal principles and statutes governing costs in litigation. The court also needed to consider whether a gross sum costs order was appropriate in the circumstances of this case. This required a careful analysis of the specific facts and the nature of the litigation.

In delivering the judgment, the court considered the relevant authorities and principles. The court found that while there was no issue of principle that the usual principles of taxation of costs should not apply, the specific circumstances of this case warranted a gross sum costs order. The court held that the circumstances justified departing from the usual principles and that a gross sum costs order was appropriate. The court's decision was based on a detailed analysis of the case's unique facts and the need for an efficient resolution of the litigation.

The court ordered that a gross sum costs order be made in favour of Golden, as sought. The court did not find it necessary to delve into broader principles of taxation of costs but focused on the specific circumstances of this case. This decision provides guidance on the application of gross sum costs orders in cases where the usual principles of taxation of costs may not apply.

Orders