Perpetual Trustee Company Limited v Stojcevski (No 3)

[2015] NSWSC 110

Supreme Court

New South Wales

Medium Neutral Citation:	Perpetual Trustee Company Limited v Stojcevski (No 3) [2015] NSWSC 110
Hearing dates:	3 February 2015
Date of orders:	03 February 2015
Decision date:	03 February 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Order that the cross-defendant’s costs of the cross-claim be fixed in the sum of $111,000.00 instead of assessed costs. 2. Order that the amount expressed in order 1 be paid within 21 days of the date of this order, namely by 24 February 2015.
Catchwords:	COSTS - Civil Procedure Act 2005 (NSW), s 98(4)(c) - specified gross sum costs order – circumstances in which specified gross sum costs order may be made – cost and length of time of first instance determination and appeal - effect of delay – prospect that surplus funds from sale of property could be dissipated unless monetary costs judgement made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4)
Cases Cited:	Harrison v Schipp [2002] NSWCA 213, 54 NSWLR 738 Hamod v State of New South Wales [2011] NSWCA 375 Perpetual Trustee Company Limited v Stojcevski [2014] NSWSC 1718 Perpetual Trustee Company Limited v Stojcevski (No 2) [2014] NSWSC 1827
Category:	Costs
Parties:	Perpetual Trustee Company Limited (Plaintiff) Branko Stojcevski (First Defendant/Cross Claimant) Lesley Alexandra Stojcevski (Second Defendant) Frank Mathey (Cross Defendant)
Representation:	Counsel: S Stierli (Plaintiff) R Watson (First Defendant) MJ Cameron (Cross Defendant) Solicitors: Hicksons (Plaintiff) AR Conolly & Co (Cross Claimant) Sparke Helmore (Cross Defendant)
File Number(s):	2013/60807

Judgment

Introduction

1. In this matter I delivered judgment in the principal action between Mr Stojcevski and Mr Mathey on 3 December 2014 and ordered that the cross-claim be dismissed: Perpetual Trustee Company Limited v Stojcevski [2014] NSWSC 1718.

2. On 18 December 2014 I made orders that the cross-claimant pay the cross-defendant's costs of the proceedings on the indemnity basis. Further, I made an order under section 98(4)(c) of the Civil Procedure Act 2005 (NSW) that costs be assessed on the basis of gross sum: Perpetual Trustee Company Limited v Stojcevski (No 2) [2014] NSWSC 1827. I stood over the assessment of those costs to today for hearing before me. I did not give reasons in my judgment of 18 December 2014 for the making of a gross sum costs order on the basis that I proposed to give such reasons today and also for the amount.

Relevant principles

3. The Court may order payment of costs in a specified gross sum instead of assessed costs under section 98(4)(c) of the Civil Procedure Act. The power to make such an order is not confined and may be made whenever the circumstances warrant it. Harrison v Schipp [2002] NSWCA 213 at [21], 54 NSWLR 738 (Giles JA).

4. The principles and authorities were helpfully summarised by her Honour Justice Beazley JA in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820].

Reasons

5. I considered that it was appropriate to make such an order because these proceedings, which I regard as having been unmeritorious, would otherwise require a cost assessment which could involve first instance determinations and an appeal. This process could take between four and 12 months and cost as much as $20,000.

6. Furthermore, the settlement that the cross-claimant reached with the plaintiff in the proceedings, Perpetual Trustee Company Limited, on the eve of the trial means that there may be a surplus of available funds from the sale of the property the subject of proceedings. However, if costs are not assessed before the sale of that property, settlement of which is to occur 28 February 2015, there is a real prospect that any surplus funds available from the sale of the property could be dissipated unless Mr Mathey has a monetary costs judgment which he can seek to enforce. It seems to me, having regard to the nature of the proceedings and the inevitable delay that would be occasioned if the matter proceeded to a conventional cost assessment, that this is the very sort of case which is envisaged by s 98(4) of the Civil Procedure Act.

7. Mr Cameron, the solicitor on the record for the cross-defendant who appeared on his behalf today, relied on evidence read on the previous occasion, which included an affidavit affirmed by him on 15 December 2014 together with an affidavit of Roland Patrick Matters of 17 December 2014.

8. Mr Cameron instructed Mr Matters, an experienced litigation solicitor and costs assessor, to provide an opinion on various matters including: the length of time a conventional cost assessment could take; the percentage of actual out-of-pocket costs and disbursements that a party would ordinarily recover on assessment on the indemnity basis; and what figure he would regard as appropriate for a gross sum costs order in this matter.    

9. At the hearing of the assessment of gross sum before me today, Mr Watson, solicitor, appeared on behalf of Mr Stojcevski. Mr Watson did not seek to be heard against the quantification by Mr Matters of the costs, having regard to the invoices annexed to Mr Cameron's affidavit and the opinions expressed in Mr Matters' report. For this reason, I can be briefer than otherwise and indicate that I accept the evidence of Mr Matters and Mr Cameron. I consider it to be appropriate in all the circumstances that the cost of the proceedings be assessed in a gross sum of $110,000.    

10. There are the additional costs which I ordered the first defendant to pay of the hearing today. Such costs could have been avoided had Mr Stojcevski consented to the amount which was proposed by Mr Cameron and supported by his evidence and that of Mr Matters. Mr Cameron informed me from the bar table that he estimated such costs to be in the order of $1,000. I consider it to be appropriate that that sum be added to the amount of the gross sum order. Accordingly, I order that the cross-defendant's costs of the cross-claim be fixed in the sum of $111,000 instead of assessed costs.    

11. There is the further matter of the time at which such costs are to be paid. I am informed by Mr Stierli who appears on behalf of the plaintiff that the sale of the property is to be settled on 28 February 2015.    

12. Having regard to the matters I have already referred to, I consider it appropriate in all the circumstances to order that the amount expressed in order 1 be paid within 21 days of the date of this order, namely by 24 February 2015.

Orders

13. I make the following orders:   

(1)   Order that the cross-defendant’s costs of the cross-claim be fixed in the sum of $111,000.00 instead of assessed costs.

(2)   Order 1 be paid within 21 days of the date of this order, namely by 24 February 2015.

**********

Decision last updated: 24 February 2015