Lawrence v Sammut (No 4)

[2022] NSWSC 1033

Supreme Court

New South Wales

Medium Neutral Citation:

Lawrence v Sammut (No 4) [2022] NSWSC 1033

Hearing dates:

16 May 2022

Date of orders:

1 August 2022

Decision date:

01 August 2022

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. The report of the referee Mr Bartos of 16 August 2021 be adopted pursuant to r 20.24 of the UniformCivilProcedureRules 2005 (NSW).

2. The appeal be allowed.

3. The Certificate of Determination of Costs issued by the Costs Assessor on 14 September 2020, be set aside.

4. The Certificate of Determination of Review issued by the Review Panel on 25 February 2021 be set aside.

5. The judgment entered on 18 February 2021 be set aside, and in lieu of that judgment, there be judgment for the defendants as follows:

The plaintiff, Wayne James Lawrence, is to pay the defendants, Alice Alexandria Sammut and Paul William Ciantar, the sum of $232,951.24 comprising:

i. the costs ordered to be paid by the plaintiff to the defendants pursuant to order made by Henry J in proceedings no. 2017/336803 on 14 June 2019 totalling $208,330.03;

ii. interest on the costs of $208,330.03 from 26 April 2019 up to 25 August 2021, totalling $32,229.52;

iii. Less:

a. the costs payable in respect of the Certificate of Determination of Manager’s Assessment Costs issued by the Costs Assessor on 14 September 2020, totalling $4,900.00; and

b. the costs of costs assessment as originally certified by the costs assessor (being the filing fee paid on the application for assessment) in the sum of $2,708.31.

6. The Plaintiff is to pay the Defendants’ costs of this proceeding.

7. Unless agreed, pursuant to s 98(4)(c) of the Civil Procedure Act the Plaintiff is to pay the costs ordered in Order 6, in a specified gross sum, in an amount to be determined by the Registrar.

8. The matter be listed before the Registrar for directions on 8 August 2022 at 9.30 am.

Catchwords:

COSTS — whether successful party entitled to a costs order — exceptions to general rule that costs follow the event — rule 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) — operation of s 89 of the Legal Profession Uniform Law Application Act2014 (NSW) and reg 53 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) — misconduct of a party resulting in unnecessarily protracted proceedings and costs unnecessarily incurred — whether costs order should be made against successful party — whether lump sum costs order should be made — referral to Registrar

Legislation Cited:

Civil Procedure Act2005 (NSW), ss 13, 56, 98

Legal Profession Uniform Law Application Act2014 (NSW), s 89

Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 53

Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24, 36.16, 42, 42.1, 42.34

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Arian v Nguyen [2001] NSWCA 5

Fordyce v Leung [2022] NSWCA 55

Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Harvey v Barton (No 4) [2015] NSWSC 809

Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464

Lawrence v Sammut [2022] NSWSC 344

Lawrence v Sammut [2022] NSWSC 657

Lawrence v Sammut (No 2) [2022] NSWSC 390

McCusker v Rutter [2010] NSWCA 318

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162

Category:

Costs

Parties:

Wayne Lawrence (Plaintiff)
Alice Sammut (First Defendant)
Paul Ciantar (Second Defendant)

Representation:

Counsel:
Ms J McDonald (Defendants)

Mr W Lawrence (Plaintiff self-represented)

Solicitors:
McLean & Associates (Defendants)

File Number(s):

2021/57931

JUDGMENT

1. In May 2022 I gave judgment on an appeal from the decision of a Review Panel about the assessment of costs incurred in proceedings before Henry J brought under s 89 of the Legal Profession Uniform Law Application Act2014 (NSW): Lawrence v Sammut [2022] NSWSC 657.

2. There was then no issue as to the inadequacy of the reasons given by the Review Panel for its decision, the Panel having rejected Mr Lawrence’s challenge to the cost assessor’s decision about the disputed costs of the primary proceedings. There is no question that Ms Sammut and Mr Ciantar were not responsible for the inadequacy of those reasons. But there were other issues lying between the parties which remained to be resolved, with the result the conclusion that orders had to be made in favour of Mr Lawrence.

3. That reflected the adoption of the referee’s report about the disputed costs, which had been produced in accordance with consent orders made by Davies J under Pt 20 r 14 of the Uniform Civil Procedure Rules 2005 (NSW), despite the opposition of Ms Sammut and Mr Ciantar.

4. The result was that Mr Lawrence’s case succeeded and the parties were directed to confer on final orders, including as to costs. The usual order under the Uniform Civil Procedure Rules is that costs follow the event, which would in the circumstances be an order that Ms Sammut and Mr Ciantar bear Mr Lawrence’s costs, as agreed or assessed, which they opposed. They also sought departures from the usual order, which were opposed by Mr Lawrence.

5. Affidavits and written submissions were later filed, the parties having agreed that what was in issue should be determined on the papers.

6. Submissions prepared by counsel were provided on 7 June by Mr Lawrence’s solicitors, Morson Law. Defence submissions were also filed on 7 June. Mr Lawrence then himself filed further submissions and further submissions were also filed for the defence, to which he responded.

Issues

7. In issue is whether Mr Lawrence’s conduct and provisions of the Uniform Civil Procedure Rules and the Legal Profession Uniform Application Regulation 2015 (NSW) disentitle him to the usual order and warrant a costs order being made in favour of Ms Sammut and Mr Ciantar. Whether a gross sum in accordance with s 98(4) of the Civil Procedure Act2005 (NSW) should be made also arises to be considered, as does who should pay for the costs of the assessment and the review.

8. What lies in issue needs to be considered in light of the claims and orders which have variously been made about the disputed costs, which related to proceedings concerning a development on a property at Forestville, in which Henry J dismissed the summons and ordered Mr Lawrence to pay the defendants’ costs: Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464. Including interest, as calculated for Ms Sammut and Mr Ciantar*, what arose to be considered was:

Professional Costs	Disbursements	Total	Interest	Total with interest
Bill of Costs	184,683.62	86,147.73	270,831.35	270,831.35
Costs Assessors Determination 14.09.20	152,600.00	76,855.29	229,455.29	19,709.74	249,155.03
Review Panel 04.02.21	152,600.00	76,855.29	229,455.29	19,709.74	249,155.03
Bartos Report	146,183.64	62,146.39	208,330.03	31,802.29	240,132.32

(*Affidavit of Karen McLean 27.06.22)

The competing orders

9. The orders sought by Mr Lawrence on 7 June were:

“1. The report of Mr John Bartos dated 16 August 2021 be adopted pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The appeal be allowed.

3. The Certificate of Determination of Costs issued by the Costs Assessor on 14 September 2020, be set aside.

4. The Certificate of Determination of Review issued by the Review Panel on 25 February 2021 be set aside.

5. The judgment entered 18 February 2021 be set aside, and in lieu of that judgment, judgment for the defendants in these proceedings as follows:

i. Judgment for Alice Alexandra Sammut and Paul William Ciantar against Wayne Lawrence in the sum of $208,330.03 pursuant to the costs order made by Henry J in proceedings no. 2017/226803 on 14 June 2019.

ii. Judgment for Alice Alexandra Sammut and Paul William Ciantar against Wayne Lawrence for a sum representing:

a. Interest on the costs of $208,330.03 from 26 April 2019 to 25 August 2021 in the amount of $32,229.52.

b. Less, the costs of the Referee.

c. Less, the costs of the Review Panel pursuant to the Certificate of Determination of Review Panel Costs dated 25 February 2021 in an amount of $5,512.37.

d. Less the Manager’s Assessment Costs totalling $4,900.00.

6. That the defendants pay the plaintiff’s costs of this proceeding up to and including 29 June 2021 on an ordinary basis, with such costs to be agreed or assessed.

That the defendants pay the plaintiff’s costs of the proceedings on and from 30 June 2021 on an indemnity basis pursuant to Rule 42.14 of the Uniform Civil Procedure Rules 2005 (NSW), with such costs to be agreed or assessed.

10. The orders sought by Ms Sammut and Mr Ciantar were:

“1. The report of John Bartos dated 31 July 2021, (Referee’s Report), be adopted.

2. The appeal be allowed.

3. The Certificate of Determination of Costs issued by the Costs Assessor on 14 September 2020, be set aside.

4. The Certificate of Determination of Review issued by the Review Panel on 25 February 2021, be set aside.

5. The judgment entered 18 February 2021 and given Case No. 2021/0039707 be set aside and in lieu thereof judgment be entered in these proceedings as follows:

The Plaintiff, Wayne James Lawrence, is to pay the Defendants, Alice Alexandria Sammut and Paul William Ciantar, the sum of $253,680.23 representing:

i. the costs ordered to be paid by the Plaintiff to the Defendants pursuant to order made by Henry J in proceedings no. 2017/336803 on 14 June 2019 totalling $208,330.03;

ii. interest on the costs of $208,330.03 from 26 April 2019 up to 25 August 2021, totalling $32,229.52;

iii. the costs payable by the Plaintiff to the Defendants pursuant to the Certificate of Determination of Manager’s Assessment Costs issued by the Costs Assessor on 14 September 2020, totalling $4,900.00;

iv. the costs payable by the Plaintiff to the Defendants pursuant to the Certificate of Determination of Review Panel Costs issued by the Review Panel on 25 January 2021, totalling $5,512.37;

v. the costs of costs assessment as originally certified by the costs assessor (being the filing fee paid on the application for assessment) in the sum of $2,708.31.

6. The Plaintiff is to pay the Defendants’ costs of this proceeding.

7. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the Plaintiff is to pay the costs ordered in Order 6, in a specified gross sum, in an amount to be determined by the Registrar.

8. The Plaintiff is entitled to a set off for the costs ordered by the Court in Order 6 in the amount of $8,595.48.

9. The matter be listed before the Registrar for directions.”

11. There does not seem to be any problem with the proposed orders 1-4, which flow from the conclusions reached in the May judgment, they requiring the Court’s record to be corrected. There is also no issue about the Court’s power to do so: r 36.16 of the Uniform Civil Procedure Rules considered in Fordyce v Leung [2022] NSWCA 55 at [63].

The costs order Mr Lawrence seeks cannot be made

12. I have concluded that the costs orders Mr Lawrence sought cannot be made, notwithstanding his success in the proceedings.

The parties’ cases

13. In written submissions made by Mr McGirr of counsel for Mr Lawrence, it was argued that the usual costs order should be made, the consequences of the adoption of the referee’s report not having been trivial, resulting in a significant windfall to Mr Lawrence and both the cost assessor and the review panel’s certificates having to be set aside.

14. In the result Mr Lawrence should also not be liable for the assessor’s costs of $4,900, or those of the review panel, $5,512.37. He had already paid $262,275.71 inclusive of interest in August 2021, the cost assessor having determined costs payable exclusive of interest to be $229,445.29. He should thus not be deprived of the benefit of the ordinary rule as to costs, his case having succeeded as it did.

15. Further, s 89(1)(b) of the Uniform Law Application Act had required Mr Lawrence to bring his appeal in this Court, the costs in dispute having been more than $100,000. Accordingly, r 42.34 of the Uniform Civil Procedure Rules had no application, it providing for no costs order to ordinarily be made if judgment for less than $500,000 is obtained, in respect of proceedings that could have been commenced in the District Court.

16. Mr Lawrence also sought an indemnity costs order, from 17 June 2021 relying on a June 2021 offer of compromise which provided for the referral of the matter to the referee and payment of $100,000 on account of costs ultimately awarded, which was not accepted.

17. It was argued that the judgment ultimately given was not less favourable to Mr Lawrence than the terms of that offer, acceptance of which would have avoided the need for a hearing.

18. In his 6 July submissions Mr Lawrence dealt with Ms Mclean’s affidavit; claimed that it was the defendants who had elected not to proceed on the day the matter was first listed for hearing in 2022; and explained the case he had sought to advance in the Federal Circuit Court, where bankruptcy proceedings had been pursued against him; and how the proceedings before Henry J had come to be pursued. He argued that he had been entitled to pursue the assessment of the costs and the appeals which he pursued in relation to those costs, as he did. He had successfully challenged them, in ways that he explained, in considerable detail, which it is not necessary to explain.

19. In his 12 July submissions Mr Lawrence made further detailed reference to documents and transcripts in other proceedings and his red book colour coded bill of costs, on which he had relied in the assessments, appeals and reviews. He argued that it had been the defendants who had elected to persecute him by the bankruptcy notice, rather than dealing with these proceedings. The result was that he had paid his own costs, as well as those paid to the defendants. He also complained that they had relied on the evidence of Ms Mclean, who had represented them in various proceedings even though the assessment of her costs were the subject of these proceedings.

20. Much of these submissions were difficult to follow and aspects of them were clearly irrelevant to the determination of the orders now to be made.

21. Ms Sammut and Mr Ciantar contended that the overall justice of the case required a departure from the usual costs order: McCusker v Rutter [2010] NSWCA 318. They relied on an offer made shortly before the proceedings were commenced, which they claimed was more favourable to Mr Lawrence than the final result and the delay and wasted costs which were incurred as the result of his conduct, including by failing for some two months to accept the offer to refer to the referee; the adjournment of the 11 February hearing and the unjustified service of notices to produce, which were set aside

22. They also relied on 89(2) of the Uniform Law Application Act, under which the Court had all of the functions of the Review Panel on this appeal. Further, that reg 53(2) of the Legal Profession Uniform Law Application Regulation provided:

(2) If a review panel sets aside the determination of a costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15% of the total costs payable as assessed by the costs assessor.

23. Because the referee determined costs of $208,330.03, that being only 9% less than the $229,445.29 the assessor had assessed, it followed that Mr Lawrence should pay the costs of the review.

24. It was also submitted that the discretion granted by r 42.1 of the Uniform Civil Procedure Rules to depart from the usual costs order would be exercised, given Mr Lawrence’s misconduct in the proceedings. Further, that r 42.34 contemplated that a costs order would not usually be made in the circumstances which here arose, because the amount in issue was less than $500,000.

25. Ms Sammut and Mr Ciantar contended that a costs order would be made in their favour, Mr Lawrence not having bettered offers made to him; his conduct having occasioned unnecessary expense, wasted costs, and delay; they not having been the cause of the appeal, that having resulted from the inadequate reasons given by the Review Panel; and the Regulations and Rules contemplating that he would bear the costs of the proceedings, the disputed costs having been decreased by less than 15%.

Mr Lawrence is not entitled to an indemnity costs order

26. The Court has power to order indemnity costs under s 98(1) of the Civil Procedure Act. But Mr Lawrence did not establish that he did better than his June 2021 offer. Henry J ordered Mr Lawrence to pay costs on the ordinary basis until 21 June 2018 and thereafter on an indemnity basis. The referee’s conclusion was that he had to pay costs of $146,183.64, with disbursements a total of $208,330.03, which also attracted interest.

27. Mr Lawrence had offered to pay $100,000 on account of those costs and a referral to the referee, not the adoption of the report. While that was what he finally advanced, that was opposed and resolved at the final hearing.

28. That a contest over adoption of the report would not have had to be resolved by the Court, if the offer on which Mr Lawrence relied had been accepted, is not apparent.

29. It is also relevant that the hearing listed for 11 February 2022 before Lonergan J was adjourned in circumstances where Mr Lawrence was no longer legally represented, although a notice of ceasing to act required under the Rules had not been served. The result was that he was not ready to proceed and the hearing was adjourned, through no fault of Ms Sammut and Mr Ciantar.

Nor is Mr Lawrence entitled to a costs order on the usual basis

30. The usual order under the Uniform Civil Procedure Rules is that costs follow the event, they being compensatory to the party who successfully conducts the litigation: r 42. But other rules provide for a departure from the usual order, including r 42.34. And the Court also has a discretion to depart from the usual order, in an appropriate case, including when the successful party obtains final judgment which is no more favourable than the offer and in the case of misconduct.

Misconduct

31. Conduct which can disentitle a successful party to the usual costs order includes when the successful party “by its lax conduct effectively invites the litigation (100); unnecessarily protracts the proceedings (109); succeeds on a point not argued before a lower court (110); prosecutes the matter solely for the purpose of increasing the costs recoverable (111); or obtains relief which the unsuccessful party had already offered in settlement of the dispute (112)”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69].

32. Mr Lawrence was, at times, legally represented, but finally himself advanced submissions. That he has had difficulty when representing himself may be accepted, but that did not relieve him of the obligations imposed on all parties by s 56(3) of the Civil Procedure Act. That is, to assist the Court to further the overriding purpose specified in s 56(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the court and to comply with its directions and orders.

33. I am satisfied that the evidence establishes that Mr Lawrence’s approach to the proceedings was not always consistent with this obligation, with the result the proceedings were unnecessarily protracted and costs unnecessarily incurred, before he finally urged the adoption of the referee’s conclusions. That evidence also establishes relevant misconduct, to which I will return.

Section 89(1) of the Legal ProfessionUniform Law Application Act

34. Section 89(1) of the Uniform Law Application Act also needs to be considered. It provides:

89 Appeal on matters of law and fact

(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to—

(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or

(b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000.

(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.

(3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit.

(3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court.

(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.

35. Contrary to Mr Lawrence’s case, s 89(1) thus did not preclude his appeal against the decision of the Review Panel being brought in the District Court, given that it was within that Court’s jurisdictional limit. Further, the appeal could only be brought in this Court with leave, if the amount of costs in dispute was less than $100,000: s 89(1)(b).

36. I concluded in the May judgment that the amount in dispute was more than $100,000, the bill for professional costs having been $184,683.62 and with disbursements, totalling $270,831.35, while Mr Lawrence claimed that costs should only have been $71,432.87: at [31].

37. I also concluded that even if leave to appeal was required, it should be given, the assessor having assessed costs to be $152,600.00 and with disbursements totalling $229,455.29; that being appealed, including for the inadequacy of the reasons given; the errors into which the Review Panel fell; the consent referral to the referee which resulted; and the conclusions which the referee reached on the matters over which the parties joined issue: at [22].

38. But that does not mean that proceedings could not have been brought in the District Court.

39. No explanation for the appeal against the Review Panel’s decision having been brought in this Court, rather than the District Court, was advanced, other than the submission that the proceedings had to be commenced in this Court, because more than $100,000 was in issue. That cannot be accepted.

Rule 42.34 of the Uniform Civil Procedure Rules

40. Indeed, given the requirements of r 42.34, it is apparent that Mr Lawrence took a real risk in relation to costs when he brought his appeal in this Court, given that what was in issue being less than $500,000. It provided:

42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court

(1) This rule applies if—

(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that—

(a) for proceedings that could have been commenced in the District Court—the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or

(b) …

41. The onus lies on Mr Lawrence to establish a just basis for departure from the consequences of r 42.34, in the circumstances which have arisen for consideration. That was not met.

42. Given the real issues lying between the parties as to the proper assessment of the disputed costs, there being no issue between them as to the inadequacy of the reasons given by the Review Panel and the parties agreeing to the referral to the referee as they did, that proceedings in this Court were warranted in all of the circumstances, is not apparent.

43. In the result it must also be concluded that under the Uniform Civil Procedure Rules, Mr Lawrence is not entitled to a costs order in his favour, despite his success on the appeal.

Regulation 53 of the Uniform Law Application Regulation

44. Even if he were, account would also have to be taken of s 89(2) of the Uniform Law Application Act, the effect of which is that the Court exercises all of the functions of the Review Panel, on this appeal.

45. Regulation 53 of the Uniform Law Application Regulation requires a Panel not only to consider costs when it makes a determination in favour of a party who applied for review, but to require that party to pay the costs of the review, if the total costs assessed by the costs assessor are decreased by an amount that is less than 15% of the total costs which the costs assessor assessed to be payable.

46. Here the assessor and the Panel concluded that costs payable were $152,600 and the referee, whose report was adopted, that they were $146,183.64. While that was considerably less than the $184,683.62 which had been billed, the difference between their conclusions and those of the assessor was less than 15%. As was the difference between the total costs and disbursements.

47. In the result, the requirements of reg 53 also support the conclusion that Mr Lawrence is not entitled to a costs order, despite his success.

Should a costs order be made against Mr Lawrence?

Regulation 53

48. In the result, reg 53 also supports a costs order being made in favour of Ms Sammut and Mr Ciantar, as does Mr Lawrence’s conduct of the proceedings.

Conduct of the proceedings

49. Through no fault of Ms Sammut and Mr Ciantar, the February 2022 hearing had to be adjourned. There is no reason, as a matter of justice, why they would not be entitled to a costs thrown away order, as a result, despite his success at the adjourned hearing.

50. In March 2022 they successfully obtained orders setting aside notices to produce served while Mr Lawrence was self-represented: Lawrence v Sammut [2022] NSWSC 344. Lonergan J found the range, relevance and purpose of the notices incomprehensible, at a time when he was not advancing the adoption of the referee’s report. There is again no reason why he should not bear the resulting costs.

51. Mr Lawrence’s application for leave to issue subpoenas to Ms Sammut and Mr Ciantar’s solicitor and accountant was also refused, his submissions being incomprehensible and the documents sought having nor apparent relevance: Lawrence v Sammut (No 2) [2022] NSWSC 390. He was ordered to bear the costs of that application.

Misconduct

52. The Court also has power to make a costs order against a successful party. although such orders are rarely made, that requiring exceptional circumstances: Arian v Nguyen [2001] NSWCA 5 at [37]. They require misconduct such as lengthening the proceedings unnecessarily, causing unnecessary issues to be canvassed or otherwise causing the costs of the litigation to be increased: at [38]. In that case because of the established misconduct the successful party was ordered to pay part of the costs of the hearing and recovered only part of the costs of the appeal, on which he also succeeded.

53. Here I am satisfied that the evidence does establish that Mr Lawrence’s conduct did unnecessarily cause the costs of the litigation to be increased, apart from the matters I have already referred to.

The evidence

54. Mr Lawrence filed affidavits of 15 June, 4 July and 19 July 2022, to which were attached numerous documents, many of them of no relevance to what remains to be determined.

55. Ms Sammut and Mr Ciantar relied on an affidavit sworn by their solicitor, Ms McLean, on 27 June 2022, which also annexed various documents.

Mr Lawrence’s affidavits

56. In his 15 June affidavit Mr Lawrence relied on an offer of compromise served by his solicitor on 16 June 2021, which dealt with the appointment of Mr Bartos as referee, consent orders to be executed in relation to the bankruptcy proceedings in the Federal Circuit Court, setting aside the bankruptcy notice issued against him. But the entirety of that offer was not annexed to the affidavit.

57. He also relied on a without prejudice notice of 10 May 2022, in which he advised that he would ask the Court to adopt the referee’s report and that the hearing be vacated, with each party to bear their own costs. He also foreshadowed service of a Calderbank offer to that effect.

58. In his 4 July affidavit Mr Lawrence deposed to events which occurred in November 2017, 2018, and 2019, as well as matters which the referee had dealt with in relation to the disputed costs and conclusions reached by the referee on various costs in issue between the parties.

59. Documents annexed included an affidavit sworn by his then solicitor Mr Hedges in November 2017, concerning the extension of a caveat and the joint venture between Mr Lawrence, Ms Sammut and Mr Ciantar in relation to the development of the property which was in issue in the proceedings before Henry J; correspondence with various authorities, including NSW Fair Trading and Northern Beaches Council; complaints about breaches of legislative requirements; applications to iCare; a building contract and a contract for sale of a property at Forestville; and certificates relating to work at that property and orders made by Darke J in 2018 in the other proceedings.

60. These documents are not relevant to what remains to be determined.

61. In his large 19 July affidavit Mr Lawrence also attached numerous other irrelevant documents, including extracts from the bill of costs and transcript and submissions made in the proceedings before Henry J. In his small 19 July affidavit Mr Lawrence provided an index to those documents.

62. Mr Lawrence also explained why some submissions which he had filed in these proceedings before the final hearing had been replaced, in order to respond to the case finally advanced for Ms Sammut and Mr Ciantar.

Ms McLean’s affidavit

63. In her 27 June affidavit Ms McLean deposed to repeated, unsuccessful attempts made by Ms Sammut and Mr Ciantar to settle the proceedings, as well as the pursuit by Mr Lawrence of matters which led to wasted costs being incurred.

64. The offers were:

1. $210,000 settlement offered on 4 March 2020, the day after Mr Lawrence made the application for costs assessment;

2. An offer of compromise on 16 May 2021, consenting to the appointment of the referee and the determination of the costs assessor and review panel being set aside;

3. An open offer on 25 May 2021 to similar effect;

4. An offer of 25 June 2021 consenting to the appointment of the referee, with Mr Lawrence to pay $270,831.35 on account of costs; and

5. A 29 April 2021 offer of settlement of all matters, including the appeal from Henry J’s judgment and an unsuccessful application to the High Court for special leave to appeal, on payment of $323,947, part of which related to the costs of the primary proceedings, plus interest.

65. Mr Lawrence also made an offer of compromise on 16 June 2021, for the appointment of the referee, setting aside the certificates and payment of $100,000 on account of costs. But it also dealt with the bankruptcy proceedings being pursued in the Federal Circuit Court, in which orders were made in favour of Ms Sammut and Mr Ciantar on 27 August.

66. Amongst other things Ms McLean explained:

• the ongoing communications about a stay of the enforcement of Henry J’s judgement, on payment of the disputed costs into her trust account, even though a stay had not been sought in Mr Lawrence’s summons. Eventually he made payment in accordance with orders of the Federal Circuit Court;

• steps taken by Ms Sammut and Mr Ciantar to facilitate the hearing of the proceedings, including agreement to a stay on terms even though Mr Lawrence still had not sought orders for a stay, or paid any of the disputed costs;

• agreed variations to the timetable necessary when Mr Lawrence did not comply with various of the Court’s orders, which resulted in various costs thrown away;

• the consequences of Mr Lawrence pursuing matters and issues that were irrelevant, outside the scope of the proceedings or unintelligible, particularly after the consent referral to the referee in July 2021. They included, when he was acting for himself not having clearly withdrawn his solicitor’s instructions to act, his subsequent service of unsworn affidavits annexing many documents, which did not make clear what his attitude to various matters, including the referee’s report was; as well as the service of notices to produce and subpoenas, which sought to agitate matters not before the Court;

• other unnecessary costs flowing from service of an affidavit in December 2021 which indicated that Mr Lawrence sought to challenge the referee’s conclusions; and a further notice to produce served in February 2022, which was not withdrawn and was challenged before Lonergan J;

• the adjournment of the original hearing because Mr Lawrence no longer had legal representation, although no notice of ceasing to act had been served. The costs thrown away were left to be dealt with at the conclusion of the proceedings;

• the refusal of Mr Lawrence’s application to issue various subpoenas, successfully opposed before Lonergan J;

• until the final hearing pursuing a case, by voluminous documents served, that the referee’s costs would be further reduced; and

• pursuing steps which necessitated the pursuit of enquiries as to whether Mr Lawrence remained legally represented at various times.

A costs order must be made against Mr Lawrence

67. On all of the evidence I am satisfied that the necessary misconduct was established.

68. Mr Lawrence clearly still feels very strongly about the matters litigated before Henry J. The result was that aspects of what he has pursued at various times in these proceedings were irrelevant to the matters which the Court had to resolve, in addition to those dealt with by Lonergan J.

69. In the result the cost of the proceedings were unnecessarily increased by Mr Lawrence’s pursuit of irrelevant matters, before he successfully urged for the adoption of the referee’s report at the final hearing. That would necessarily result in an order that he pay considerable part of Ms Sammut and Mr Ciantar’s costs, other than of the final hearing, where he succeeded.

70. But given what reg 53(2) contemplates, I have concluded that Mr Lawrence must be ordered to bear their costs of the appeal, the disputed costs of the proceedings before Henry J not having been decreased by more than 15%, as the result of the adoption of the referee’s report.

The amount of the order

71. Also in issue was:

1. the costs payable in respect of the Certificate of Determination of Manager’s Assessment Costs issued by the Costs Assessor on 14 September 2020, totalling $4,900.00;

2. the costs payable pursuant to the Certificate of Determination of Review Panel Costs issued by the Review Panel on 25 January 2021, totalling $5,512.37; and

3. the costs of costs assessment as originally certified by the costs assessor (being the filing fee paid on the application for assessment) in the sum of $2,708.31.

72. Mr Lawrence having successfully challenged the bill of costs in the assessment, he ought to have recovered the filing fee and the cost assessor’s costs, in the ordinary course. But given the conclusions I have reached in relation to the costs of the appeal from the Review Panel, it follows that he is not entitled to an order for the costs of the Review Panel.

The lump sum costs order

73. Ms Sammut and Mr Ciantar also seek a lump sum costs order under s 98(4) of the Civil Procedure Act, so that another protracted dispute over costs and their assessment can be avoided.

74. Such an order can be made where the assessment of costs may be protracted and expensive, if it appears that a party obliged to pay the costs may not be able to meet a liability to do so and where a party’s conduct contributes unnecessarily to the incurring of costs: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213; at [21]-[22].

75. Such orders were made in Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307, where Mr Ghougassian was found had undertaken several steps that had resulted in the delay and disruption of the process of assessing and enforcing the order for costs there in issue: at [63]. There evidence of costs had been adduced, as it was in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 and in Harvey v Barton (No. 4) [2015] NSWSC 809.

76. In SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162 Stevenson J refused to make a gross sum costs order, not being satisfied that there was sufficient evidence to warrant the making of such an order. In the result the plaintiff was ordered to pay 80% of the defendant’s claimed costs, less a specified sum.

77. In this case the order sought was that the sum be determined by the Registrar. Section 13 of the Civil Procedure Act permits functions of the Court to be delegated to the Court’s registrars. In relation to costs, the former Chief Justice’s delegation of 17 December 2018 as to costs includes matters referred to a registrar by a judge.

78. I am satisfied that the difficult, protracted litigious history between these parties does favour the exercise of the s 13 power of referral for costs under s 98(4). Mr Lawrence did not oppose such a referral. In all of the circumstances I have discussed, I am satisfied that it would be just to make the referral, which will help avoid what is only likely to be a further unnecessarily difficult, costly, protracted costs assessment process. But the order will preserve the possibility that the parties will agree those costs.

Orders

79. For the reasons given I order that:

1. The report of the referee Mr Bartos of 16 August 2021 be adopted pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The appeal be allowed.

3. The Certificate of Determination of Costs issued by the Costs Assessor on 14 September 2020, be set aside.

4. The Certificate of Determination of Review issued by the Review Panel on 25 February 2021 be set aside.

5. The judgment entered on 18 February 2021 be set aside, and in lieu of that judgment, there be judgment for the defendants as follows:

The plaintiff, Wayne James Lawrence, is to pay the defendants, Alice Alexandria Sammut and Paul William Ciantar, the sum of $232,951.24 comprising:

i. the costs ordered to be paid by the plaintiff to the defendants pursuant to order made by Henry J in proceedings no. 2017/336803 on 14 June 2019 totalling $208,330.03;

ii. interest on the costs of $208,330.03 from 26 April 2019 up to 25 August 2021, totalling $32,229.52;

iii. Less:

a. the costs payable in respect of the Certificate of Determination of Manager’s Assessment Costs issued by the Costs Assessor on 14 September 2020, totalling $4,900.00; and

b. the costs of costs assessment as originally certified by the costs assessor (being the filing fee paid on the application for assessment) in the sum of $2,708.31.

6. The Plaintiff is to pay the Defendants’ costs of this proceeding.

7. Unless agreed, pursuant to s 98(4)(c) of the Civil Procedure Act the Plaintiff is to pay the costs ordered in Order 6, in a specified gross sum, in an amount to be determined by the Registrar.

8. The matter be listed before the Registrar for directions on 8 August 2022 at 9.30 am.

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Decision last updated: 01 August 2022