Hazan v The Manager, Costs Assessment - [2023] NSWSC 1587

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hazan v The Manager, Costs Assessment [2023] NSWSC 1587
Hearing dates: In chambers
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Refuse the second defendant’s application for costs.
(2) The second defendant to pay the plaintiff’s costs in the sum of $163,484.13.
(3) The second defendant to pay the third defendant’s costs in the sum of $33,677.60.

Catchwords:
COSTS — review of decision by manger, costs assessment granting the second defendant an extension of time to bring costs assessment application — whether the manager failed to deal with and consider the substance of the plaintiff’s case — consideration of second defendant’s change of position — second defendant’s unilateral withdrawal of its application for a costs assessment - capitulation — second defendant liable for plaintiffs’ costs and Sanderson orders warranted — assessment of costs on a gross sum basis and any discounts

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014
(NSW) ss 76, 83B, 93B, 198
Supreme Court Act 1970 (NSW)

Cases Cited:
Australia Wide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Australiawide Airlines Limited v Aspirion Constructions Pty Ltd [2006] NSWCA 365
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Great Lakes Shire Council v Dederer (No 2) [2006] NSWCA 336
McNamara v San [2010] NSWSC 809
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Cabramatta King Tea Pty Ltd [2022] NSWSC 462
Re Minister for Immigration & Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Sanderson v Blyth Theatre Company Limited [1903] 2 KB 533.

Category: Principal judgment
Parties: Yves Raphael Hazan (First Plaintiff)
Peter Whitehead (Second Plaintiff)
Manager, Costs Assessment (First Defendant)
Diane Maloney (Second Defendant)
Grahame Richardson SC (Third Defendant)
Michael Todd (Fourth Defendant)
Representation:
Counsel:
Kieran Smark SC with Talitha Fishbrun (Plaintiffs)
Philippe Doyle Gray (Second Defendant)
Declan Roche (Third Defendant)
Solicitors:
Gilchrist Connell (Plaintiffs)
Pointon Partners (until 12 December 2022) (Second Defendant)
York Law (Third Defendant)
Jo-Anna F.S. Moy Solicitor (Fourth Defendant)

File Number(s): 2022/80991
Decision under review

Jurisdiction:

Costs Assessment

Date of Decision:

10 March 2022

Before:

Manager, Costs Assessment

JUDGMENT

These proceedings, commenced by summons filed on 21 March 2022, are an application under s 93B Legal Profession Uniform Law Application Act 2014 (NSW) (“Application Act”) and r 49.19 Uniform Civil Procedure Rules (NSW) (“UCPR”) for the review of a decision of the Manager, Costs Assessment (“MCA”) made under s 198(4) Legal Profession Uniform Law (NSW) (“Uniform Law”) on 10 March 2022 extending the time for the second defendant to bring an application for the assessment of solicitor and client costs incurred in family law proceedings (2021/00354374).
The Court’s powers under s 93B(3) Application Act are broad. While it is unnecessary to expound on the nature of them for the…

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.

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Details

Case: [2023] NSWSC 1587
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case of Hazan v The Manager, Costs Assessment involves the plaintiff, Hazan, and the second defendant in a legal dispute that necessitated a review of the costs assessment decision made by the manager. The primary issue was whether the manager had failed to consider the substance of Hazan’s case when granting an extension to the second defendant to bring a costs assessment application. The dispute also involved the second defendant’s unilateral withdrawal of its application for a costs assessment, and whether this constituted capitulation, warranting an order for Hazan’s costs and a Sanderson order.

The court examined the circumstances surrounding the second defendant’s withdrawal of its costs assessment application. It was determined that the second defendant had unilaterally withdrawn the application, which was seen as a form of capitulation. Consequently, the second defendant was held liable for Hazan’s costs, and a Sanderson order was deemed appropriate. Furthermore, the court assessed the costs on a gross sum basis, taking into account any applicable discounts. The reasoning was that such an assessment aligned with the principles of fairness and the objectives of the costs legislation.

The court concluded that the second defendant’s actions constituted capitulation, and thus Hazan was entitled to an order for costs and a Sanderson order. The assessment of costs was carried out on a gross sum basis to ensure fairness and to reflect the true financial burden imposed on Hazan. This decision underscored the importance of considering the broader context and the conduct of the parties in determining costs awards.

The final orders included a ruling that the second defendant was liable for Hazan’s costs, and a Sanderson order was warranted. Costs were assessed on a gross sum basis, with any appropriate discounts taken into account. This outcome reflects the court's commitment to ensuring that costs are fairly allocated and that the procedural integrity of the litigation process is upheld.

Orders