Harrison v Schipp

[2002] NSWCA 213

Reported Decision: (2002) 54 NSWLR 738

New South Wales

Court of Appeal

CITATION:	Harrison & Anor v Schipp [2002] NSWCA 213
FILE NUMBER(S):	CA 40728/98
HEARING DATE(S):	21 & 24 June 2002
JUDGMENT DATE:	3 July 2002
PARTIES :	D J Schipp - Claimant G A Harrison - Opponent
JUDGMENT OF:	Giles JA

COUNSEL:	M J Slattery QC & J M Hennesy - Claimant G Lucarelli - Opponent
SOLICITORS:	Dibbs Barker Gosling - Claimant Blake Dawson Waldron - Opponent
CATCHWORDS:	COSTS - order for costs of appeal - beneficiary of order seeks further order for payment of a fixed sum for counsels' fees instead of assessed costs - discussion of power to make further order - whether power should be exercised. D.
CASES CITED:	Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628; Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Union des Assurances de Paris IARD v Petersen (3 March 1998, Master Malpass, unreported); Wentworth v Wentworth (CA, 21 February 1996, Clarke JA, unreported).
DECISION:	(1) In respect of the costs payable pursuant to order 5 of the orders made on 20 February 2001 the first appellant pay to the respondent $63,998 for counsel's fees instead of the assessed costs for counsels' fees. (2) That the first appellant pay the respondent's costs of the notice of motion filed on 10 May 2002.

CA 40728/98

GILES JA

Wednesday 3 July 2002

HARRISON & ANOR v SCHIPP

Judgment

1 GILES JA: This is an application for orders for payment of a fixed sum in respect of costs previously ordered to be paid and issue of a “certificate of taxation” in that sum. For the reasons which follow, in my opinion the order for payment of a fixed sum should be made, but not the order for the issue of a “certificate of taxation”.

History

2 In 1991 Mrs Delcie Schipp brought proceedings against Mr George Harrison and his company Emibarb Pty Ltd, Mr Don Cameron and his company Don Cameron Real Estate Pty Ltd, and other defendants. At a later time the proceedings were extended to include a claim by Mrs Schipp against Mr Harrison’s insurers pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946. Mr Harrison and Mr Cameron cross-claimed against Mrs Schipp.

3 The proceedings were heard by Einstein J over many days in the period 26 September 1997 to 7 April 1998. Judgment was given on 9 July 1998. Two hearings and judgments on ancillary matters followed. Orders were made on 9 September 1998.

4 His Honour ordered the Harrison defendants and the Cameron defendants to pay Mrs Schipp $230,880.04 as equitable compensation and $394,526.81 interest, and to pay Mr Schipp’s costs of the proceedings on an indemnity basis. The claim against the insurers failed, and Mrs Schipp was ordered to pay the insurers’ costs of the proceedings. Mrs Schipp’s application…