Messias v de Barros (No 2)

District Court

New South Wales

Medium Neutral Citation:	Messias v de Barros (No 2) [2013] NSWDC 126
Hearing dates:	7 and 11 June 2013
Decision date:	11 June 2013
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	1. Order the defendant pay the plaintiff's costs. Those costs, including the costs ordered by me on 16 May 2013 (but not any other costs the subject of an existing order) to be assessed on an indemnity basis from and including 11 April 2012.
Catchwords:	COSTS - indemnity costs - over-servicing - relevant delinquency - timing of special costs order
Legislation Cited:	Civil Procedure Act 2005, s 56, s 57 Property (Relationships) Act 1984 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Baker v Towle [2008] NSWCA 73 Bi v Mourad [2010] NSWCA 17 Deves v Porter [2003] NSWSC 878 Everett v Neale [2012] NSWDC 83 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan & Ors) [2009] NSWCA 161 Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 Oshlack v Richmond River Council [1998] HCA 11 Parks v Thompson [1997] DFC 95 - 182 Separovich v Ferrao (No 2) [2011] NSWCA 346 Van Zonneveld v Seaton [2005] NSWSC 175
Category:	Costs
Parties:	Nailse Messias (plaintiff) Wilson de Barros (defendant)
Representation:	Mr J F Heazlewood (plaintiff) Ms L Snelling (defendant) Penhall & Co (plaintiff) GP Legal (defendant)
File Number(s):	2010/272845
Publication restriction:	No

ex tempore Judgment

1. I recently gave judgment in favour of Nailse Messias in the sum of $90,000. Ms Messias seeks an order for costs, with those costs to be assessed on an indemnity basis from 5 August 2011.

1. As an alternative, Ms Messias seeks that the indemnity nature of the costs order commence on 11 April 2011 or, alternatively, that 95 per cent of indemnity costs be ordered.

1. Mr de Barros accepts that Ms Messias is entitled to an order for costs but opposes all of the orders sought. He submits that Ms Messias should get 33 per cent of the costs assessed on the usual basis and, in an alternative submission that was made towards the conclusion of submissions, on the basis that the costs should not exceed the amount of the judgment made in favour of Ms Messias.

Basis of respective positions

1. Ms Messias asks for a special costs order because of the conduct of Mr de Barros in the proceedings. It is not in contest that Mr de Barros was in default of directions on a number of occasions and that additional costs were incurred by reason of these defaults. Mr de Barros submits that already three costs orders have been made against him and thus his defaults have already been the subject of costs orders.

1. Mr de Barros submits that Ms Messias claimed an amount of $250,000 and, ignoring interest, the amount received amounted to about 33 per cent of the claim. He submitted that…