Pearce and Heers v Liprini (No 2)

[2015] NSWSC 530

Supreme Court

New South Wales

Medium Neutral Citation:	Pearce & Heers v Liprini (No 2) [2015] NSWSC 530
Hearing dates:	Written submissions
Date of orders:	06 May 2015
Decision date:	06 May 2015
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Defendant to pay plaintiffs’ costs fixed in the sum of $6,000
Catchwords:	COSTS – application by defendant to set aside orders under Vexatious Proceedings Act dismissed - defendant a bankrupt – order for defendant to pay plaintiffs’ costs in fixed sum.
Legislation Cited:	Civil Procedure Act 2005, s 98(4)(c) Vexatious Proceedings Act 2008, s 9
Cases Cited:	Pearce & Anor v Liprini [2014] NSWSC 1316. Harrison v Schipp [2002] NSWCA 213, 54 NSWLR 738 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56, 234 CLR 52
Category:	Costs
Parties:	Pearce & Heers (plaintiffs) Dr Liprini (defendant)
Representation:	Counsel: N Kirby (plaintiffs) In person (defendant) Solicitors: AJ Lambros – Bennett & Philp Lawyers (plaintiff)
File Number(s):	2011/201820

Judgment

1. On 26 September 2014, I refused an application by the defendant, Dr Liprini, pursuant to s 9 of the Vexatious Proceedings Act 2008, to set aside orders made against him under that Act: Pearce & Anor (formerly Pascoe) v Liprini [2014] NSWSC 1316. The question of costs of that application remained outstanding, and I directed that it be dealt with by written submissions. I received an affidavit of 17 October 2014 of the plaintiffs’ solicitor, Mr Andrew Lambros, together with written submissions by their counsel, Mr Kirby. This material was forwarded by email to Dr Liprini on 28 October, with a direction that any written submissions by him should be forwarded by 7 November. No such submissions have been received, and there has been no contact from the Dr Liprini. Accordingly, I propose to deal with the issue of costs on the material supplied by the plaintiffs.

2. In his affidavit Mr Lambros deposes to costs, including counsel’s fees, of $9,465 + GST. He estimates that about 75% of that figure would be recoverable on a party/party basis, producing a figure of $7,098.75 (+ GST). He has been in practice as a solicitor in commercial litigation since 2003, and I accept that the fees charged are reasonable and that his estimate of the amount recoverable is appropriate.

3. Mr Labros also deposes that an assessment of costs would incur further substantial expense and, pursuant to s 98(4)(c) of the Civil Procedure Act 2005, he seeks an order for costs fixed by the court in the amount of $6,000.

4. In his submissions, Mr Kirby referred to the decision of Giles JA in Harrison v Schipp [2002] NSWCA 213, 54 NSWLR 738, a case concerning a predecessor the Civil Procedure Act provision in the Supreme Court Rules. His Honour observed at [21] (742) that the power conferred by that rule was “not confined, and may be exercised whenever the circumstances warrant its exercise.” He added that it “may appropriately be exercised when the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment … .” His Honour also said at [22] (743) that the “power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available … .”

5. Mr Kirby also referred to the decision of Young JA in Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270, a case dealing with the Civil Procedure Act provision. After referring to [30]-[32] to Harrison v Schipp and subsequent authority, His Honour said at [33]:

6. “The decision of Von Doussa J in Beach Petroleum NL v Johnson (No 2)(1995) 57 SCR 119 is frequently cited with approval. Von Doussa J noted that the procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is logical, fair and reasonable.”

7. Dr Liprini has had more than adequate opportunity to adduce evidence and make submissions on this issue. Although he is not legally represented, his conduct of these proceedings demonstrates his ability to do both of those things. His application before me was unsuccessful and, plainly enough, the plaintiffs are entitled to an order for costs.

8. I am satisfied that it is appropriate to fix an amount of costs pursuant to s 98(4)(c). The criteria referred to by Giles JA in Harrision v Schipp are met here. The process of the assessment of costs would be needlessly expensive, and it does appear that Dr Liprini may not be able to meet a liability of the order likely to result from such an assessment. In my view, the power conferred by the provision can be exercised fairly between the parties, and an appropriate amount can be arrived at on the materials before me. In all the circumstances, I am satisfied that the order for a significantly discounted amount of costs sought by the plaintiffs is a practical and just way of dealing with the issue.

9. The fact that Dr Liprini is bankrupt does not prevent this costs order being made: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56, 234 CLR 52. Nor is it a basis upon which I should exercise my discretion against making such an order. Indeed, I accept Mr Kirby’s submission that, given Dr Liprini’s litigious history, culminating in a vexatious proceedings order, it would be dangerous to convey to him that he “could carry on litigating with impunity and without the natural concomitant risk of costs”.

10. Accordingly, I order Dr Liprini pay the plaintiffs’ costs of the application before me fixed in the sum on $6,000, exclusive of GST.

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