NWC Finance Pty Ltd v Borsellino (No 2)

[2015] NSWSC 372

Supreme Court

New South Wales

Medium Neutral Citation:

NWC Finance Pty Ltd v Borsellino & Anor (No 2) [2015] NSWSC 372

Hearing dates:

2 April 2015

Date of orders:

02 April 2015

Decision date:

02 April 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

Click here to enter text.

1.     Order that Ghassan Dib indemnify the plaintiff, NWC Finance Pty Limited, by paying to it the sum of $38,200.

 2.     Order that the exhibits on this application be returned.

Catchwords:

COSTS – assessment of costs payable by a practitioner thrown away by reason of an adjournment – no question of principle.

Cases Cited:

- NWC Finance Pty Limited v Borsellino [2015] NSWSC 211

Category:

Costs

Parties:

NWC Finance Pty Ltd – Plaintiff
Eliza Borsellino - First Defendant/First Cross Claimant

Representation:

Counsel:
A.G. Martin – Plaintiff
Ms B. Oliak (Mr G. Dib)

Solicitors:
Bransgroves - Plaintiff
Dib Law (Mr G. Dib)

File Number(s):

2013/209276

Publication restriction:

Nil

Ex tempore Judgment

Costs application; see transcript p 134

1. In the circumstances I will shortly describe, the only matter left for me to determine at this point is the quantum of the costs payable by Mr Ghassan Dib by way of indemnifying the plaintiff for the costs it has paid to its solicitors after the adjournment of the hearing on these proceedings, which were listed to commence on 9 March 2015. On that day an application was made for an adjournment, which was granted (see NWC Finance Pty Limited v Borsellino [2015] NSWSC 211 (“NWC Finance”)).

2. As a result of the circumstances that led to that adjournment, on 11 March 2015 I heard an application by the plaintiff for an order that Mr Dib indemnify it for the costs that it was required to pay its legal representatives by reason of the adjournment. The application proceeded. However, at its conclusion I adjourned the application to enable Mr Dib to himself bring an application requiring another practitioner to either pay or contribute to those costs. Both the application against Mr Dib and the application by Mr Dib were returnable today.

3. In the end result Mr Dib’s application in respect of that other practitioner was resolved on terms that need not be discussed further. Further, Mr Dib, through his counsel, accepted that it was appropriate for the Court to make an order for costs against him and also accepted that it was appropriate that the Court do its best to assess those costs so as to avoid the parties incurring further delay and cost in the assessment process. I add that it was also accepted that, given the basis of the application against him, it was appropriate that the costs be made payable on an indemnity basis.

4. The plaintiffs tendered some material indicating that the costs sought in total comprised a sum of $46,997.31, which included the costs of 11 March 2015 but which excluded the costs of attending today. That figure was comprised of the sum of $21,590 in professional fees and $25,406.51 in disbursements, of which $24,486 was counsel fees. There was tendered a tax invoice breaking down the professional costs, as well as various invoices concerning the disbursements, including counsel’s fees, as well as an invoice recording payment.

5. Counsel for Mr Dib, Ms Oliak, who I might interpolate has had a most difficult task to perform and has performed it well, handed up a set of objections to those fees. In broad terms the objections did not take issue with the rate that was charged, but did take issue with some of the time allocated to particular tasks. However the main objection was that a number of the items claimed would not be truly thrown away by reason of the adjournment, but may instead be used when the proceedings come on for hearing at a later time.

6. This latter contention represents a difficult matter to assess in this case. As the judgment in NWC Finance at [14] noted, there is a necessity for Mr Dib’s former client, Ms Borsellino, to obtain alternative representation, given the allegation in her defence that she did not receive independent legal advice. There is a prospect that if that occurs then the case that ultimately proceeds to trial may, although not necessarily will, look quite different to the case that was being prepared in March. Hence, counsel for the plaintiff submitted that there should be either no reduction or only a minimal reduction in the fees claimed by reason of the contention that the costs will not be wasted because ultimately this case will look quite different.

7. Ms Oliak submitted that, in fact, those sort of costs will be addressed if and when any application for an amendment is made and it is not appropriate to consider them at the time of considering costs thrown away. One difficulty with that contention is that it is difficult to see any relevant assessing officer being able to isolate those costs.

8. Overall the Court must look to the reasons for the adjournment, which included the concern that I raised about the existence of a potential conflict, particularly in circumstances where the evidence revealed that the plaintiff had been agitating about the existence of that conflict for a considerable period of time.

9. Accordingly, while Ms Oliak may be correct in submitting that a number of these costs do not immediately strike one as costs that are necessarily wasted, I do need to take into account the prospect that they will prove to be wasted given what is likely to be in issue at a final hearing.

10. One of the largest objections made by Ms Oliak was the level of counsel fees that were charged. No objection was taken in respect of the counsel fees incurred during the period that was otherwise set aside for the hearing especially as counsel had to attend on 9 March 2015 to argue the adjournment and had to return on 11 March 2015 to argue the costs application itself. However, issue was taken with the amount of charging for preparation.

11. Generally there is often a degree of preparation that is undertaken by counsel that will be wasted when a case is adjourned because, even with the best memories in the world, counsel move on to the next case. When they have to pick up the case again, they have to read into it. Ultimately that is a cost that, given the circumstances that gave rise to the adjournment, the plaintiff should not have to bear.

12. Accepting that these matters are always imprecise, I make an assessment that the level of professional fees claimed at $21,590.80 will be allowed in the amount of $16,500 and the level of disbursements claimed of $25,406.51 will be allowed in the amount of $17,500, yielding a total of $34,000.

13. In respect of the attendance today my impression is that since the matter was adjourned on 11 March 2015 there has been an intense amount of work undertaken on behalf of Mr Dib. However the plaintiff’s position understandably has been that the progress of the claim against the other practitioner was not a matter for it. Accordingly I would only propose to allow the sum of $4,200 to reflect the costs of attending of today.

14. Accordingly, I order that Ghassan Dib indemnify the plaintiff, NWC Finance Pty Limited, by paying to it the sum of $38,200. I also order that the exhibits on this application be returned.

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Decision last updated: 08 April 2015