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

1. 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.”

2. 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).

3. 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 or submissions in relation to the Gross Sum Costs.

4. The Gross Sum Costs are 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 that notice of motion relating to the application under the Vexatious Proceedings Act 2008 (NSW).

Applicable principles in relation to gross sum costs

5. The principles applicable to the quantification by a court of a gross sum for costs can be adequately summarised for present purposes as relevantly including:

1. The Court has a discretionary power to make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) and the discretion is not confined and may be exercised whenever the circumstances warrant its exercise: Gabrielle v Abood (No 4) [2023] NSWCA 100 (Gabrielle) at [6] (Bell CJ, Kirk and Adamson JJA);

2. A gross sum costs order may be appropriate where the party ordered to pay costs is of limited means and the likelihood of the party entitled to costs recovering their costs is small: Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [823] and [826] (Beazley JA, Giles and Whealy JJA agreeing);

3. The power should only be exercised when the Court considers that it can do so fairly between the parties, including having sufficient confidence in arriving at an appropriate sum on the materials available: Gabrielle at [6];

4. In determining the quantum of a gross sum costs order, the Court is not required to undertake a detailed examination of the kind that would be appropriate for a formal costs assessment: Hamod at [819]; Gabrielle at [6];

5. The approach to the assessment of gross sum costs must be logical, fair and reasonable, based on an informed assessment of the actual costs, having regard to the information before the Court (for example, by way of costs estimates or bills): Hamod at [820]; Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (Ahern) at [18] (Meagher, White and Brereton JJA);

6. Where appropriate, the Court may adopt a “broad-brush” approach to quantification and it has been usual to apply an “impressionistic” discount to the costs actually incurred or estimated in order to take account of the contingencies that would be relevant in a formal costs assessment: Hamod at [814] and [820]; Ahern at [18]; Gabrielle at [6]; and

7. The aptness and amount of a particular discount will depend primarily on the accuracy and reliability of the evidence as to costs incurred available to the Court and also on the particular circumstances of the case: Ahern at [18]; Hamod at [814].

Findings

6. In the present case, the evidence was contained in the affidavit of Mr John Pavlakis. Based on his evidence, my findings are as set out in the following paragraphs.

1. Mr Pavlakis, who has been the partner responsible for the conduct of this matter on behalf of the defendants, is a very competent and experienced litigation solicitor. He has substantial experience of the fees charged to both commercial and government clients by reputable legal firms in litigious matters and the amounts that might be recovered in such matters on an assessment of “ordered costs” under the Legal Profession Uniform Law Application Act 2014 (NSW).

2. The actual costs and disbursements incurred by the defendants in relation to the summary dismissal application, including the cost of the hearing on 21 August 23, and the cost of the proceedings generally apart from costs on that notice of motion relating to the application under the Vexatious Proceedings Act, that is the Gross Sum Costs (as defined above), can be appropriately estimated, using the approach, adjustments and rates set out in Mr Pavlakis’s affidavit which I accept are reasonable and accurate, at $44,617.29, made up of:

1. Solicitors’ fees of $33,961.69;

2. Counsel’s fees of $8,561.84; and

3. Other disbursements of $2,093.76.

3. The sum of $44,617.29 does not include additional amounts which had not been billed at the time Mr Pavlakis’s affidavit was affirmed and which related principally to preparation for and attendance at the directions hearing on 6 December 2023.

4. On an assessment of ordered costs on the ordinary basis, a party entitled to costs usually recovers in the order of 60% of solicitors’ fees, 60-90% of counsel’s fees and 100% of disbursements.

5. Applying a “generic discount” of 40% to both solicitors’ and counsel’s fees but no reduction to disbursements would yield a sum of $27,607.88.

6. The plaintiff has not paid other gross sum costs orders made against him in similar proceedings against different defendants but relating to the same subject matter.

7. The plaintiff has limited means and would be unlikely to pay, or be able to pay, any substantial amount of costs.

Consideration

7. In light of my findings and the relevant principles set out above, the present case is one in which the making of a gross sum costs order is appropriate.

8. Despite the fact that a reasonable and very moderate assessment of the amount of the defendants’ recoverable costs is $27,607.88, Mr Pavlakis has been instructed to seek a gross sum costs order only in the amount of $15,000.00. Such an order would involve a discount of approximately 66.4% on the actual quantum of costs incurred. As a result, there would appear to me to be little, if any, chance that a gross sum costs order in the amount sought would involve any injustice to the plaintiff.

9. In light of the defendants’ instructions and in all the circumstances, I am of the view that a gross sum costs order should be made in the sum sought by the defendants.

Orders

10. For these reasons, the Court orders that:

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.

**********

Endnote

Decision last updated: 28 February 2024