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Lawrence v Sammut (No 4)

Lawrence v Sammut (No 4)

Case [2022] NSWSC 1033 1 August 2022

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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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

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 Lawrence v Sammut (No 4)

Details

AGLC: Lawrence v Sammut (No 4) [2022] NSWSC 1033
Case: [2022] NSWSC 1033
Decision Date: 01 August 2022

CaseChat Overview and Summary

In Lawrence v Sammut (No 4), the plaintiff sought a determination regarding costs incurred during protracted proceedings. The matter involved a dispute between the plaintiff and the defendant, with the plaintiff ultimately prevailing. The case was heard in the Supreme Court of New South Wales, with Justice Lee delivering the judgment. The primary legal issues revolved around the entitlement of the successful party to a costs order, exceptions to the general rule that costs follow the event, and the application of specific provisions under the Uniform Civil Procedure Rules 2005 (NSW), the Legal Profession Uniform Law Application Act 2004 (NSW), and the Legal Profession Uniform Law Application Regulation 2015 (NSW).

The court was required to decide whether the plaintiff was entitled to a costs order, despite the general principle that costs follow the event. The plaintiff argued for a lump sum costs order, citing the defendant's misconduct, which had led to unnecessarily protracted proceedings and incurred excessive costs. The court examined the interplay between rule 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) and sections 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and regulation 53 of the Legal Profession Uniform Law Application Regulation 2015 (NSW). These provisions were considered in light of the defendant's actions that resulted in the prolongation of the proceedings.

Justice Lee concluded that the defendant's misconduct warranted an exception to the general rule of costs following the event. The court found that the defendant's conduct had unnecessarily protracted the proceedings and led to additional costs being incurred by the plaintiff. Consequently, the court ordered that the defendant bear a significant portion of the plaintiff's costs, reflecting the misconduct that led to the escalation of costs. The court also found that a lump sum costs order was appropriate in the circumstances, and it referred the matter to the Registrar to determine the precise amount of costs to be awarded to the plaintiff.

Orders