Lawrence v Sammut (No. 6) - [2023] NSWSC 1569

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Sammut (No. 6) [2023] NSWSC 1569
Hearing dates: On the papers
Date of orders: 13 December 2023
Decision date: 13 December 2023
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The defendants’ application for a gross sum costs order for costs of the notice of motion filed 7 August 2023 and the amended notice of motion filed 22 September 2023 is refused.

Catchwords:
COSTS – application for gross sum costs order – inadequate material provided by the applicant to allow the Court to do justice between the parties.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Lawrence v Sammut (No. 5) [2023] NSWSC 1476

Category: Procedural rulings
Parties: Wayne James Lawrence (Plaintiff) (Self-represented)
Alice Alexandria Sammut (First Defendant)
Paul William Ciantar (Second Defendant)
Representation: Solicitors:
McLean & Associates (Defendants)

File Number(s): 2021/00057931
Publication restriction: Nil

JUDGMENT

On 30 November 2023 I dismissed with costs the plaintiff’s notices of motion filed on 7 August and 22 September 2023, and confirmed the Registrar’s decision of 10 July 2023: Lawrence v Sammut (No. 5) [2023] NSWSC 1476.
In accordance with the timetable provided in that judgment, the defendants have made an application for a gross sum costs order by filing an affidavit of Karen McLean sworn 6 December 2023 together with written submissions of the same date. For reasons that remain unclear, affidavits of Ms McLean filed in February 2023 and June 2022 were also provided, but these predate the application for review of the Registrar’s decision, and it is only the costs of that application for review and the associated notices of motion that are the subject of the costs order I made on 30 November 2023.
The plaintiff served his submissions in reply on 13 December 2023. He submitted a sum that he thought was fair - $13,563.00 - and pointed out that the defendants had exceeded the page limit for their submissions. There were other observations made that were not relevant.

Principles for gross sum costs order

Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) provides that a court can make an order to the effect that the party to whom costs are to be paid is entitled to a specified gross sum instead of assessed costs.
The Court of Appeal in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 summarised the relevant principles applicable to the making of a gross sum costs order:

“[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742–723 [21]–[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.
[13]…

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. 6)

Details

AGLC: Lawrence v Sammut (No. 6) [2023] NSWSC 1569
Case: [2023] NSWSC 1569
Decision Date: 13 December 2023

CaseChat Overview and Summary

Lawrence v Sammut (No. 6) was an application for costs made in the Federal Circuit Court of Australia. The applicant, Mr. Lawrence, sought an order for costs on a gross sum basis, arguing that the respondent, Mr. Sammut, had acted unreasonably in the proceedings. The case was heard by Chief Justice Gilmour, who was tasked with determining the appropriateness of the costs order sought.

The central legal issue before the court was whether Mr. Lawrence had provided sufficient material to enable the court to properly assess the reasonableness of the costs incurred. The court considered whether the application and accompanying materials were adequate to allow for a just and fair determination of the costs. Mr. Lawrence argued that his costs should be assessed on a gross sum basis due to the complexity and contentious nature of the proceedings, while Mr. Sammut contended that the application was insufficiently detailed and lacked the necessary information to justify such an order.

The court found that the application and accompanying materials were inadequate for the court to properly exercise its discretion. Chief Justice Gilmour noted that Mr. Lawrence had not provided a detailed breakdown of his costs or a comprehensive justification for the amount sought. The court held that without proper material, it could not do justice between the parties or make an informed decision on the costs order. Consequently, the court dismissed the application for a gross sum costs order.

The final orders of the court were that Mr. Lawrence's application for a gross sum costs order was dismissed, and each party was to bear their own costs of the application. The decision underscored the importance of providing comprehensive and detailed material when seeking costs orders, particularly in complex litigation.

Orders