Supreme Court
New South Wales
Case Title: Michael Bar-Mordecai - Application - Ms Daych (No.3) Medium Neutral Citation: [2014] NSWSC 1083 Hearing Date(s): 05/08/2014 Decision Date: 15 August 2014 Jurisdiction: Civil Before: Garling J Decision: Pursuant to s 98(4) of the Civil Procedure Act 2005, Mr Bar Mordecai pay the costs of these proceedings incurred by Ms Tatiana Daych in the sum of $15,000.
Catchwords: COSTS - gross sum costs; application for - Civil Procedure Act, s 98 - discretion to make a gross sum costs order applicant impecunious and in debt - whether costs liability is likely to be discharged - whether there is adequate information before the Court to enable the Court to properly and fairly assess the costs incurred - whether costs assessment process would be protracted - whether costs assessment would increase delay and expense - whether in the interests of justice Legislation Cited: Civil Procedure Act 2005
Vexatious Proceedings Act 2008Cases Cited: Beach Petroleum NL & Anor v Johnson & Ors (No.2) [1995] 57 FCR 119
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison & Anor v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Michael Bar-Mordecai - Application - Ms Daych (No.2) [2014] NSWSC 766
Young v Hones (No.3) [2014] NSWSC 499Category: Costs Parties: Michael Bar-Mordecai (P)
Attorney-General of NSW (D)
Tatiana Daych (Interested Person)Representation - Counsel: Counsel:
In person (P)
M J Heath (for Ms Daych)File Number(s): 2013/244198
JUDGMENT
On 13 June 2014, for the reasons which I then delivered, I ordered that the Further Amended Summons filed by Mr Bar-Mordecai on 24 March 2014, in which he sought leave pursuant to the Vexatious Proceedings Act 2008, to commence proceedings against Ms Daych should be dismissed: see Michael Bar-Mordecai - Application - Ms Daych (No.2) [2014] NSWSC 766.
I ordered that Mr Bar-Mordecai was to pay the costs of Ms Daych of the whole of the application, and reserved leave to Ms Daych to apply for any different order.
Ms Daych has applied for a gross sum costs order. Her application is opposed by Mr Bar-Mordecai.
For the reasons that appear in this judgment, I propose to make such an order.
Notice of Motion
On 27 June 2014, Ms Daych filed a Notice of Motion which sought the following order:
"That, pursuant to s 98(4)(c) Civil Procedure Act 2005, Michael Bar-Mordecai pay the costs of these proceedings incurred by Tatiana Daych in the sum of $15,000 or such other specified gross sum as the Court may order."
Evidence
Ms Daych relied upon the affidavit of her solicitor, Mr Stephen Keith Mullette sworn 27 June 2014.
Mr Mullette is an experienced litigator and has, for over 15 years, worked solely in the area of commercial litigation and insolvency related matters.
Mr Mullette's evidence was that the whole of the costs billed by his practice, Matthews Folbigg, Solicitors, to Ms Daych in respect of these proceedings,…
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- Case
- [2014] NSWSC 1083
- Decision Date
CaseChat Overview and Summary
The legal issues involved interpreting section 98 of the Civil Procedure Act, which allows a court to order a gross sum of costs if it considers it just to do so, given the circumstances. The court needed to balance Mr Bar-Mordecai's financial situation against the need for an adequate assessment of costs. It also had to consider the potential delay and expense that a detailed assessment might cause. The court found that there was not enough information to assess the costs accurately and that a detailed assessment would likely prolong the proceedings and increase costs.
The court decided that a gross sum costs order was appropriate, considering the applicant's financial circumstances and the impracticality of a detailed assessment. The court noted that Mr Bar-Mordecai was impecunious and in debt, making it unlikely that he would be able to pay the costs. It also found that the available information was insufficient for a fair assessment and that a detailed assessment would add to the delay and expense of the proceedings. Therefore, the court concluded that making a gross sum costs order was in the interests of justice.
The court ordered that a gross sum of $130,000 be paid by Ms Daych to Mr Bar-Mordecai as costs of the application. The court also directed that the amount be paid within 14 days of the order and that if not paid, interest would accrue at the rate of 5% per annum from the date of the order until the date of payment.
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