McCabe v Riechelmann (No 3) - [2023] NSWDC 280

District Court

New South Wales

Medium Neutral Citation: McCabe v Riechelmann (No 3) [2023] NSWDC 280
Hearing dates: 20 July 2023
Date of orders: 20 July 2023
Decision date: 20 July 2023
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the proceedings:
(1) Pursuant to section 98 of the Civil Procedure Act2005 and Regulation 2 of Schedule 1 of the Legal Profession Uniform Law Application Act2014 (“the Act”) the defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed capped at $10,000 for legal services as defined by Regulation 2 of Schedule 1 of the Act. The defendant is also to pay the plaintiff’s disbursements for the Statement of Claim proceedings as agreed or assessed except as limited by Regulation 2 of Schedule 1 of the Act;
(2) The defendant cross‑claimant is to pay to the plaintiff/cross‑defendant the plaintiff’s/cross‑defendant’s costs of the Cross-Claim proceedings as agreed or assessed on the ordinary basis up to and including 9 January 2022 and on an indemnity basis from 10 January 2022 to 8 June 2023;
(3) Pursuant to the Civil Procedure Regulation2017, Regulation 10(2)(a), the defendant/cross‑claimant is to pay the Court hearing fees in respect of the hearing of the proceedings;
(4) Liberty to apply on three days’ notice.
Note: The plaintiff concedes in relation to order (1) that the capped fees include barristers fees.
In relation to the Notice of Motion filed 29 June 2023:
(1) Upon the defendant through her counsel giving undertakings to the Court, first, not to sell or otherwise dispose of her interest in the property known as Unit [XXX] The Esplanade, Cronulla in the State of New South Wales without giving 14 days’ notice to the solicitor for the plaintiff and, secondly, to prosecute the appeal brought by Notice of Appeal filed 19 May 2023 with all due dispatch, stay until the determination of the appeal or until further order, any orders as to costs and disbursements and hearing fees made by the Court on 20 July 2023 in the proceedings.
(2) The costs of the Notice of Motion are to be costs in the cause of the appeal filed on 19 May 2023.
Note: the undertakings referred to in order (1) above were made to the Court.

Catchwords:
COSTS – capped costs - whether GST is included in capped costs – treatment of disbursements in orders – stay of costs orders

Legislation Cited:
A New Tax System (Good and Services Tax) Act 1999 (Cth)
Civil Procedure Act2005
Civil Procedure Regulation2017
Legal Profession UniformLaw Application Act2014

Cases Cited:
McCabe v Riechelmann [2023] NSWDC 44
McCabe v Riechelmann(No 2) [2023] NSWDC 201

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 – EX TEMPORE

Before the Court for determination are two…

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 McCabe v Riechelmann (No 3)

Details

AGLC: McCabe v Riechelmann (No 3) [2023] NSWDC 280
Case: [2023] NSWDC 280
Decision Date: 20 July 2023

CaseChat Overview and Summary

McCabe v Riechelmann (No 3) is a case before an Australian court that deals with the issue of costs associated with legal proceedings. The plaintiff, McCabe, is seeking costs from the defendant, Riechelmann, in relation to various stages of the litigation. The matter has reached the point where the court must determine the specifics of the costs that are to be paid, including whether certain fees and disbursements are included, and how they are to be calculated. The court must also consider whether certain costs should be stayed pending the outcome of an appeal.

The legal issues before the court were primarily concerned with the interpretation of the Civil Procedure Act 2005 and the Legal Profession Uniform Law Application Act 2014. The court had to decide whether the capped costs should include the Goods and Services Tax (GST) and how to treat disbursements within the orders. Furthermore, the court needed to address whether certain costs should be stayed pending the determination of an appeal, and how to allocate the costs of the Notice of Motion.

In delivering its decision, the court clarified that the capped costs would be set at $10,000 for legal services, as defined by the relevant regulations. The court confirmed that this amount included barristers' fees as conceded by the plaintiff. The court also ruled that disbursements were to be paid by the defendant unless specifically limited by regulation. Regarding the stay of costs, the court accepted the defendant's undertakings and stayed the costs orders until the appeal was determined or further order. The costs of the Notice of Motion were to be considered part of the costs of the appeal.

The court made several orders to reflect its decision. The defendant was ordered to pay the plaintiff’s costs of the Statement of Claim proceedings, up to a capped amount, and any allowable disbursements. The defendant was also to pay the plaintiff's costs of the Cross-Claim proceedings on the ordinary basis until a certain date and on an indemnity basis thereafter. Additionally, the defendant was to cover the court hearing fees. The court granted a stay on the costs orders pending the outcome of the appeal, and the costs of the Notice of Motion were to be considered part of the appeal costs.

Orders

Orders of the court

In relation to the proceedings:

(1) Pursuant to section 98 of the Civil Procedure Act 2005 and Regulation 2 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (“the Act”) the defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed capped at $10,000 for legal services as defined by Regulation 2 of Schedule 1 of the Act. The defendant is also to pay the plaintiff’s disbursements for the Statement of Claim proceedings as agreed or assessed except as limited by Regulation 2 of Schedule 1 of the Act;

(2) The defendant cross‑claimant is to pay to the plaintiff/cross‑defendant the plaintiff’s/cross‑defendant’s costs of the Cross-Claim proceedings as agreed or assessed on the ordinary basis up to and including 9 January 2022 and on an indemnity basis from 10 January 2022 to 8 June 2023;

(3) Pursuant to the Civil Procedure Regulation 2017, Regulation 10(2)(a), the defendant/cross‑claimant is to pay the Court hearing fees in respect of the hearing of the proceedings;

(4) Liberty to apply on three days’ notice.

Note: The plaintiff concedes in relation to order (1) that the capped fees include barristers fees.

In relation to the Notice of Motion filed 29 June 2023:

(1) Upon the defendant through her counsel giving undertakings to the Court, first, not to sell or otherwise dispose of her interest in the property known as Unit [XXX] The Esplanade, Cronulla in the State of New South Wales without giving 14 days’ notice to the solicitor for the plaintiff and, secondly, to prosecute the appeal brought by Notice of Appeal filed 19 May 2023 with all due dispatch, stay until the determination of the appeal or until further order, any orders as to costs and disbursements and hearing fees made by the Court on 20 July 2023 in the proceedings.

(2) The costs of the Notice of Motion are to be costs in the cause of the appeal filed on 19 May 2023.

Note: the undertakings referred to in order (1) above were made to the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McCabe v Riechelmann (No 3) [2023] NSWDC 280
Hearing dates:	20 July 2023
Date of orders:	20 July 2023
Decision date:	20 July 2023
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the proceedings: (1) Pursuant to section 98 of the Civil Procedure Act2005 and Regulation 2 of Schedule 1 of the Legal Profession Uniform Law Application Act2014 (“the Act”) the defendant is to pay the plaintiff’s costs of the Statement of Claim proceedings as agreed or assessed capped at $10,000 for legal services as defined by Regulation 2 of Schedule 1 of the Act. The defendant is also to pay the plaintiff’s disbursements for the Statement of Claim proceedings as agreed or assessed except as limited by Regulation 2 of Schedule 1 of the Act; (2) The defendant cross‑claimant is to pay to the plaintiff/cross‑defendant the plaintiff’s/cross‑defendant’s costs of the Cross-Claim proceedings as agreed or assessed on the ordinary basis up to and including 9 January 2022 and on an indemnity basis from 10 January 2022 to 8 June 2023; (3) Pursuant to the Civil Procedure Regulation2017, Regulation 10(2)(a), the defendant/cross‑claimant is to pay the Court hearing fees in respect of the hearing of the proceedings; (4) Liberty to apply on three days’ notice. Note: The plaintiff concedes in relation to order (1) that the capped fees include barristers fees. In relation to the Notice of Motion filed 29 June 2023: (1) Upon the defendant through her counsel giving undertakings to the Court, first, not to sell or otherwise dispose of her interest in the property known as Unit [XXX] The Esplanade, Cronulla in the State of New South Wales without giving 14 days’ notice to the solicitor for the plaintiff and, secondly, to prosecute the appeal brought by Notice of Appeal filed 19 May 2023 with all due dispatch, stay until the determination of the appeal or until further order, any orders as to costs and disbursements and hearing fees made by the Court on 20 July 2023 in the proceedings. (2) The costs of the Notice of Motion are to be costs in the cause of the appeal filed on 19 May 2023. Note: the undertakings referred to in order (1) above were made to the Court.
Catchwords:	COSTS – capped costs - whether GST is included in capped costs – treatment of disbursements in orders – stay of costs orders
Legislation Cited:	A New Tax System (Good and Services Tax) Act 1999 (Cth) Civil Procedure Act2005 Civil Procedure Regulation2017 Legal Profession UniformLaw Application Act2014
Cases Cited:	McCabe v Riechelmann [2023] NSWDC 44 McCabe v Riechelmann(No 2) [2023] NSWDC 201
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