James v Phillips (No 2) - [2017] NSWSC 257

Supreme Court

New South Wales

Medium Neutral Citation: James v Phillips (No 2) [2017] NSWSC 257
Hearing dates: On the papers
Date of orders: 16 March 2017
Decision date: 16 March 2017
Jurisdiction: Equity
Before: Pembroke J
Decision:
Order that the plaintiffs pay to the defendants the sum of $65,789.63.

Catchwords: COSTS - Civil Procedure Act 2005 (NSW) s 98(4) - Civil Procedure Act 2005 (NSW) s 98(2) - lump-sum costs order - calculation on indemnity basis - recovery of costs in Federal Circuit Court – unreasonable costs - discount
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1
Deputy Commissioner of Taxation v Platinum Builders Pty Ltd (2008) 3 BFRA 105
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59
Essar Oilfields Services Ltd v Norscot Rig Management Pvt Ltd [2016] EWHC 2361 (Comm)
Fordyce v Fordham (2006) 67 NSWLR 497
Hamilton v Caltex Oil (Australia) Pty Ltd [1964] Tas SR 224
Hamod v New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Harrison v Schipp (2002) 54 NSWLR 738
Ireland v Retallack (No 2) [2011] NSWSC 1096
James v Phillips [2017] NSWSC 148
Norfeld v Jones (No 2) [2014] NSWSC 199
Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121
Texts Cited: Stuart Westgarth & Raja Balachandran, “Review of Billing Practices – The Way Forward”,
Category: Costs
Parties: Gaye James – first plaintiff
Gary Phillips – second plaintiff
Brian Phillips – first defendant
Dobrinka Zlatevska – second defendant
Representation:
Counsel:
P W Bates – for the plaintiffs
D A Lloyd – for the defendants
Solicitors:
Needs Chan & Monahan – for the plaintiffs
TressCox Lawyers – for the defendants

File Number(s): 2016/00284041

Judgment

Introduction

This judgment continues the protracted litigation that followed the death of Hazel Florence Phillips. The history of this litigation already includes orders by four Judges of this Division, the Court of Appeal, the District Court of Queensland and the Federal Circuit Court. My principal judgment on 24 February 2017 summarises this history, which I will not repeat except where necessary: James v Phillips [2017] NSWSC 148 at [3]–[7].
In the principal judgment, I dismissed the plaintiffs’ claims to set aside orders of the Court of Appeal. The defendants now seek a gross-sum costs order calculated on an indemnity basis. As I have noted previously, the power to make such an order emanates from both the inherent jurisdiction of a superior court and Civil Procedure Act 2005 (NSW) (“CPA”), s 98(1)(c), (4)(c): Ireland v Retallack (No 2) [2011] NSWSC 1096 at [4]–[7]. The plaintiffs concede that the Court should exercise the power in this case. Given my observations as to the plaintiffs’ responsibility for complicating and elongating these proceedings (at [20]), that concession is entirely appropriate: see Hamod v New South Wales [2011] NSWCA 375 at [818] (Beazley JA; Giles and…

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 James v Phillips (No 2)

Details

AGLC: James v Phillips (No 2) [2017] NSWSC 257
Case: [2017] NSWSC 257
Decision Date: 16 March 2017

CaseChat Overview and Summary

In James v Phillips, the Federal Circuit Court was presented with a dispute regarding the recovery of legal costs. The parties involved in the case were James and Phillips, with the nature of the dispute centering around the calculation and reasonableness of costs awarded in the proceedings. The court had to determine whether the lump-sum costs order should be calculated on an indemnity basis and whether the costs claimed by the plaintiff were reasonable.

The primary legal issues before the court were whether the lump-sum costs order should be calculated on an indemnity basis and whether the costs claimed were reasonable and necessary. The court had to consider the relevant provisions of the Civil Procedure Act 2005 (NSW) in making its determination. The Act provides that a court may make a lump-sum order for costs, which is calculated on an indemnity basis unless the court considers it unjust or inappropriate to do so. Additionally, the court must consider whether the costs claimed are reasonable and necessary, and if not, it must reduce the amount of costs to the extent it considers appropriate.

In reaching its decision, the court considered the submissions made by both parties and the relevant legal principles. The court held that the lump-sum costs order should be calculated on an indemnity basis, as the plaintiff had not demonstrated any reason why this should not be the case. However, the court also found that some of the costs claimed were unreasonable and not necessary. The court exercised its discretion under the Civil Procedure Act to reduce the amount of costs awarded to the plaintiff. Consequently, the court made a lump-sum costs order, but it was reduced by a discount to account for the unreasonable costs.

The court's final orders included a lump-sum costs order for the plaintiff, calculated on an indemnity basis, but reduced by a discount for unreasonable costs. The court's decision underscored the importance of ensuring that costs claimed in legal proceedings are both reasonable and necessary, and it highlighted the court's discretion to adjust costs awards in light of this requirement.

Orders