Messias v de Barros (No 2)

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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…

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Details
Case
[2013] NSWDC 126
Decision Date

CaseChat Overview and Summary

Messias v de Barros (No 2) was a case before the Federal Court of Australia. The dispute involved a claim for indemnity costs by the plaintiff, Messias, against the defendant, de Barros. The case arose from the defendant's conduct during litigation, which the plaintiff alleged was marked by over-servicing and other forms of delinquency. Messias sought an order for indemnity costs, contending that the defendant's actions were a significant factor in the escalation of costs in the proceedings.

The central legal issues the court had to address were whether the defendant's actions constituted relevant delinquency that warranted an indemnity costs order and the appropriate timing for such an order. The court had to determine if the defendant's over-servicing and other actions were sufficiently egregious to justify the plaintiff being compensated for the increased costs incurred, and if so, when such an order should be made. This involved a detailed examination of the defendant's conduct and its impact on the proceedings.

The court found that the defendant's actions did indeed constitute relevant delinquency, leading to the escalation of costs. The court was satisfied that the defendant's conduct was a significant factor in the over-servicing and other issues that arose during the litigation. The court emphasised that the defendant's actions were not only excessive but also unreasonable and unjustified. Based on this finding, the court ordered that the defendant pay the plaintiff's costs, which were to be assessed on an indemnity basis from 11 April 2012, excluding costs already subject to a prior order. This decision underscored the importance of proportionality and reasonableness in legal conduct to avoid incurring indemnity costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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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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