24 March 2023 (written submissions); 12 April 2023 (written submissions); 24 April 2023 (written submissions); 12 May 2023; 16 May 2023 (written submissions and oral submissions)
Date of orders:
8 June 2023
Decision date:
08 June 2023
Jurisdiction:
Civil
Before:
Dicker SC DCJ
Decision:
1. The parties are to bring in agreed short minutes of order consistent with these reasons within 7 days.
2. Liberty to apply within 7 days.
Catchwords:
COSTS – costs of lengthy hearing where Cross-Claim proceedings were dismissed and the plaintiff was successful in obtaining relatively modest damages – Calderbank offers and offers of compromise – matter transferred by consent from the Local Court - whether the Court should “otherwise order” in relation to indemnity costs – solicitor plaintiff allegedly providing legal services to himself – damages awarded to plaintiff under $10,000 – limitations on award of costs
Todorovska v Brydens Lawyers Pty Ltd (2022) NSWCA 47
Category:
Costs
Parties:
David Terance McCabe (Plaintiff) Julie Riechelmann (Defendant)
Representation:
Counsel: J Dodd (Plaintiff) J Morris SC and M Bridger (Defendant)
Solicitors: McCabe Partners Lawyers (Plaintiff) De Luca-Leonard, Solicitor (Defendant)
File Number(s):
2018/00365976
Publication restriction:
No
JUDGMENT
These reasons for decision deal with costs issues arising in these proceedings following the Court handing down its detailed reasons for decision on 21 February 2023: see McCabe v Riechelmann [2023] NSWDC 44 (“the Judgment”). The trial was lengthy and strongly contested. There was very extensive cross-examination of a number of witnesses but particularly of the plaintiff and the defendant. Many factual issues were in dispute but particularly what occurred between the parties on the evening of 31 March 2018. At the centre of the primary factual dispute between the parties was whether the plaintiff or the defendant had committed a tortious battery with the defendant very seriously alleging that the plaintiff had deliberately…
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.
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Details
AGLC
McCabe v Riechelmann (No 2) [2023] NSWDC 201
Case
[2023] NSWDC 201
Decision Date
CaseChat Overview and Summary
McCabe commenced proceedings against Riechelmann in the Local Court, which were later transferred to the District Court. The primary dispute centred on the recovery of unpaid legal fees, with McCabe seeking damages from Riechelmann for services rendered. The matter proceeded to a lengthy hearing, resulting in McCabe obtaining relatively modest damages, while Riechelmann’s Cross-Claim was dismissed. The court was required to determine the appropriate costs order, particularly whether indemnity costs should be awarded to McCabe given the dismissal of the Cross-Claim and the relatively low damages awarded.
The court considered the implications of the Calderbank offers and offers of compromise made during the proceedings. It examined the conduct of McCabe, who was both a party and a solicitor, and the relevance of these factors in the costs determination. The court also evaluated the limitations on the award of costs under the relevant legislation, considering the damages awarded were under $10,000. The court found that despite McCabe's success, the extensive nature of the proceedings and the modest nature of the damages did not warrant indemnity costs. The court concluded that a proportionate costs order was appropriate, reflecting the circumstances of the case.
Given the findings, the court ordered that the parties prepare agreed short minutes of order within seven days, reflecting the reasons outlined. The court also granted liberty to apply within the same period for any further orders or clarifications. This decision highlights the importance of proportionality in costs orders, particularly in cases where the damages awarded are relatively modest compared to the costs incurred.
Orders
Orders of the court
1. The parties are to bring in agreed short minutes of order consistent with these reasons within 7 days.