Michael Bar-Mordecai - Application - Ms Daych (No.3) - [2014] NSWSC 1083

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 2008

Cases 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 499

Category: 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,…

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

Case: [2014] NSWSC 1083
Decision Date: 15 August 2014

CaseChat Overview and Summary

The application arose from a dispute between Michael Bar-Mordecai and Ms Daych. Mr Bar-Mordecai sought an order for gross sum costs under section 98 of the Civil Procedure Act, arguing he was impecunious and in debt, and that his costs liability was unlikely to be discharged. The court needed to determine whether there was adequate information to properly assess the costs incurred, whether the assessment process would be protracted, and if the assessment would increase delay and expense. Additionally, the court had to consider whether making a gross sum costs order was in the interests of justice.

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.

Orders