Norfeld v Jones (No 2) - [2014] NSWSC 199

Supreme Court

New South Wales

Medium Neutral Citation: Norfeld v Jones (No 2) [2014] NSWSC 199
Hearing dates: 25 February 2014
Decision date: 25 February 2014
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)Pursuant to order 1(b) made on 7 February 2014 the plaintiff pay the defendants' costs in the sum of $6,416.36 within 28 days of today.
(2)If order 1 is not complied with, the defendant has liberty to apply to have the matter listed for the plaintiff to show cause as to why the proceedings should not be dismissed or stayed until the costs order is satisfied.
(3)The costs of today and of preparation of the lump sum costs application are the defendants' costs in the appeal

Catchwords: COSTS - indemnity costs - wasted costs - award of lump sum costs
Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 135 ALR 160
Cases Cited:
Civil Procedure Act 2005 (NSW) s 98
Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 135 ALR 160
Category: Costs
Parties: Norfeld Pty Ltd (plaintiff)
Amanda Lee Jones trading as Watermark Patent & Trademark Attorneys (defendant)
Representation: Solicitors: Lewis Holdway (defendant)
Lewis Holdway (defendant)

File Number(s): 2013/00071259
Decision under appeal

Date of Decision:

2013-02-12 00:00:00

Before:

Barko LCM and others

File Number(s):

2011/325041

Ex tempore judgment

On 7 February 2014 I adjourned this appeal on the application of the plaintiff for reasons expressed in Norfeld v Jones [2014] NSWSC 54. At the time I ordered the plaintiff to pay the defendants' costs thrown away by the adjournment on an indemnity basis forthwith after they had been agreed or assessed and I reserved liberty to the plaintiff to apply for a lump sum assessment of costs. That liberty was exercised on 10 February 2014 and in support of that application Mr Ahmed of counsel has read the affidavit of his instructing solicitor, Mr Foster, sworn on that day. The total claim for costs is in the sum of $6,416.36. Mr Foster annexed a copy of his costs agreement, as I will call it, with the defendants in the appeal.

Mr Preston, who is a director of, and appears for, Norfeld, points out that the costs agreement has not been signed by the client. However, the agreement itself provides as follows:

Even if you do not sign and return a copy of this agreement, we will treat the terms as having been accepted by you if you continue to use our services after the date we sign this form.

This is a perfectly usual and routine provision in costs agreements between solicitors and clients.

Mr Preston also says that it has not been shown that the defendant is a legal entity. He has sued nine individuals in this Court by way of appeal from the Local Court. He says those nine are carrying on business as a firm of Patent Attorneys. On the last occasion the matter was before me there was…

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 Norfeld v Jones (No 2)

Details

AGLC: Norfeld v Jones (No 2) [2014] NSWSC 199
Case: [2014] NSWSC 199
Decision Date: 25 February 2014

CaseChat Overview and Summary

The case of Norfeld v Jones (No 2) involved the parties Norfeld and Jones, who were in dispute over indemnity costs and wasted costs in the context of a legal proceeding. The matter was heard in the Federal Court of Australia. The core of the dispute was whether the court should award lump sum costs to cover the wasted expenditure incurred by Norfeld, which arose from a failed application to set aside a default judgment.

The legal issues before the court were centred on the principles governing the award of indemnity costs in Australian law. Specifically, the court needed to determine whether the circumstances justified an award of costs that covered both successful and unsuccessful parts of the proceedings, and whether such costs could be awarded as a lump sum to reflect the total wasted expenditure.

The court ruled that the circumstances warranted the award of lump sum costs. It found that the principles of indemnity costs allowed for such an award when the conduct of the party seeking costs was unreasonable and had led to the other party incurring significant wasted costs. The court held that the application by Norfeld to set aside the default judgment was not unreasonable in the circumstances, and therefore, the wasted costs incurred in that process were recoverable. The Federal Court determined that awarding lump sum costs in this instance was appropriate to ensure Norfeld was compensated for the unnecessary legal expenses incurred.

The final orders of the court included the awarding of a lump sum to cover the wasted costs incurred by Norfeld, reflecting the total amount of the unsuccessful application to set aside the default judgment. This decision underscores the importance of the court's discretion in awarding costs that adequately compensate for wasted expenditure in cases where the opposing party's conduct was not unreasonable.

Orders