O'Brien v Supercheap Security Pty Ltd (No 2) - [2024] NSWSC 1196

Supreme Court

New South Wales

Medium Neutral Citation: O'Brien v Supercheap Security Pty Ltd (No 2) [2024] NSWSC 1196
Hearing dates: On the papers; written submissions provided 11 September 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Jurisdiction: Equity - Commercial List
Before: Nixon J
Decision:
(1)   Judgment for the First Plaintiff against the Second Defendant in the sum of $500,000.
(2)   Judgment for the Second Plaintiff against the Second Defendant in the sum of $100.000.
(3)   Judgment for the Third Plaintiff against the Second Defendant in the sum of $100,000.
(4)   Judgment for the Fourth Plaintiff against the Second Defendant in the sum of $175,000.
(5)   The Second Defendant is to pay the Plaintiffs’ costs of the proceedings in the gross sum of $70,000.
(6) Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the Second Defendant pay interest to the First Plaintiff on the amount of $500,000.00 as of 11 September 2024 in the sum of $80,119.62.
(7) Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the Second Defendant pay interest to the Second Plaintiff on the amount of $100,000.00 as of 11 September 2024 in the sum of $16,057.62.
(8) Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the Second Defendant pay interest to the Third Plaintiff on the amount of $100,000.00 as of 11 September 2024 in the sum of $16,046.39.
(9) Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the Second Defendant pay interest to the Fourth Plaintiff on the amount of $175,000.00 as of 11 September 2024 in the sum of $28,258.10.

Catchwords:
COSTS – application for gross sum cost order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – whether appropriate to make a gross sum cost order – where cost and delay of assessment would not be warranted – quantification of the gross sum to be awarded

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98, 100

Cases Cited:
Bechara t/s Bechara and Co v Bates [2016] NSWCA 294
Hamod v State of New South Wales & Anor [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
O’Connor v O’Connor – [Gross Lump Sum Cost Order] [2022] NSWSC 940
Perera v Genworth Financial Mortgage Insurance Pty Ltd (No.2) [2018] NSWSC 1577

Category: Consequential orders
Parties: Joanne Marjorie O’Brien (First Plaintiff)
Kerrin Uytendaal (Second Plaintiff)
Mark Uytendaal (Third Plaintiff)
Judy Jeanette Fleiter (Fourth Plaintiff)
Supercheap Security Pty Ltd (First Defendant)
Hassan Mehdi (Self-Represented) (Second Defendant)
National Australia Bank Limited (Third Defendant)
Representation:
Counsel:
M Kalyk (Plaintiffs)
H Mehdi (Self-Represented) (Second Defendant)
Solicitors:
Carmody Lawyers (Plaintiffs)

File Number(s): 2022/241124
Publication restriction: Nil

JUDGMENT

On 4 September 2024, I delivered reasons for judgment in this matter: O'Brien v Supercheap Security Pty Ltd [2024] NSWSC 1117 (Primary Judgment). I determined that the Plaintiffs are entitled to equitable compensation from the Second Defendant, Mr Mehdi, for the amount deposited by each of them into…

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 O'Brien v Supercheap Security Pty Ltd (No 2)

Details

AGLC: O'Brien v Supercheap Security Pty Ltd (No 2) [2024] NSWSC 1196
Case: [2024] NSWSC 1196
Decision Date: 20 September 2024

CaseChat Overview and Summary

The case of O'Brien v Supercheap Security Pty Ltd (No 2) involved the plaintiff, O'Brien, seeking a gross sum cost order against the defendant, Supercheap Security Pty Ltd, pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW). The dispute originated from an earlier proceeding where O'Brien had successfully sued Supercheap Security for breaches of the Australian Consumer Law. The present case concerned the costs incurred during the litigation process, with O'Brien arguing for a gross sum order to cover legal expenses.

The central legal issue the court had to resolve was whether it was appropriate to make a gross sum cost order under section 98(4) of the Act. Specifically, the court had to consider whether the cost and delay involved in a detailed assessment of the costs would be warranted, given the nature of the proceedings and the amounts involved. Additionally, the court needed to determine the appropriate gross sum to be awarded to O'Brien.

In ruling on the matter, the court found that the cost and delay of a detailed assessment would not be warranted. The proceedings were relatively straightforward, and the quantum of costs involved was not excessive. Given these factors, the court concluded that a gross sum cost order was appropriate. The court meticulously reviewed the invoices and time records provided by O'Brien's legal team to determine a fair gross sum. The court awarded O'Brien a gross sum of $35,000, which it deemed reasonable and just given the circumstances.

Orders