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

1. 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.

2. 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.

3. 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

4. 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.

5. 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] The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

[14] A ‘broad brush’ approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]

[15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].

….

[18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v New South Wales at [816]–[817] is apposite.”

Decision to decline to make a gross sum costs order

6. Unfortunately, the affidavit of Ms McLean of 6 December 2023 outlines in only the broadest of terms the number of hours of work done but with insufficient detail as to what was done and when. Describing the date of the correspondence received from the unrepresented plaintiff and the number of pages involved is insufficient. The work identified as having been done by the paralegal and junior solicitor is unspecified. Counsel’s fees are referred to in the sum of $9,900.00, but the fee note describing the work done was not attached. An item referred to as “general costs recoveries and printing costs $531.51” was too vague. There is no evidence a bill has been prepared in the usual way and forwarded to the clients. The number of hours charged by Ms McLean - 41.7 - is not explained at all and seems excessive for the issues and limited matters of content to be dealt with.

7. There is no application for indemnity costs although a submission is made that the Court should award 80% of the total professional costs claimed. It appears that the costs estimate provided by Ms McLean is an indemnity or solicitor/client costs figure, not party/party costs.

8. It is unfortunate that there is such a paucity of detail when it is clear from the affidavits of 27 June 2022 and 1 February 2023 that the appropriate level of detail was provided for the Registrar so that she could make the necessary gross sum costs order in respect of the earlier parts of the proceedings.

9. Whilst the principles cited in Ms McLean’s written submissions are correct and a broad-brush approach can and should be applied, it is the Court that applies the broad-brush to the necessary information and detail provided by the party seeking the order. The material needs to be at least sufficient to have a clear picture of the relevance, date, nature and subject matter of the work performed on dates that correspond to the part of the litigation in issue.

10. As observed in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, the Court should only exercise the power to make a gross sum costs order 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.

11. Unfortunately, the material provided does not meet that base level requirement and a gross sum costs order will not be made.

12. The defendants are to bear their own costs of this application.

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Decision last updated: 18 December 2023