Pirovic v Barbieri - [2021] NSWSC 1460

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pirovic v Barbieri [2021] NSWSC 1460
Hearing dates: 28 October 2021
Decision date: 11 November 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See [73]-[74]

Catchwords:
COSTS — Gross sum costs order — plaintiffs seeking order following attempts to enforce judgment — whether counsel’s fees were appropriate and reasonable — whether any discount should be made to legal fees including counsel’s fees

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Probate and Administration Act 1898 (NSW) s84A(3)
Uniform Civil Procedure Rules 2005 (NSW) r 42.4

Cases Cited:
Baycheck v Baycheck [2010] NSWSC 987
De Britt Seafood Pty Ltd v Qantas Airways Limited (No. 7) (2015) FCA 929
Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd [2017] FCA 63
Hamod v The State of NSW [2011] NSWCA 375
In the matter of Mosman & Co Pty Ltd [2020] NSWSC 1245
Pirovic v Barbieri [2020] NSWSC 1892
Pirovic v Barbieri [2021] NSWSC 335

Category: Costs
Parties:
2019/199597:

Antun Pirovic (first plaintiff / first cross defendant)
Zorina Pirovic (second plaintiff / second cross defendant)
Anita Victoria Barbieri (defendant / cross claimant)

2019/224336:
Anita Victoria Barbieri (plaintiff)
Vincent Pirovic (first defendant)
Antonia Pirovic (second defendant)
Representation:
Counsel:
J Drummond (acting for the Pirovic parties in both matters)
Ms Barbieri for herself
Solicitors:
Delaney Lawyers (for the Pirovic parties in both matters)
Ms Barbieri for herself

File Number(s): 2019/199597
2019/224336
Publication restriction: n/a

Judgment

I gave judgment in the “Mortgage Proceedings” (2019/199597) on the substantive issues on 21 December 2020. I gave judgment on the question of costs on 8 April 2021.
By notice of motion originally dated 27 May 2021 the plaintiffs sought amongst other things a lump sum costs order resulting from the conduct of the trial and other costs. I granted leave for the motion to further be amended to update the amount claimed which motion was heard on 28 October 2021.
The defendant, who at the moment is unrepresented, in her written submissions opposes my determining those costs now, alternatively that such if any order is made that the judgment be stayed pending what will be her belated application for leave to appeal both judgements referred to in [1] above.
The defendant notwithstanding notice having been given did not appear at the hearing of the motion. Instead she provided detailed written submissions on all questions by email to my Associate at 1.11pm on the day of the hearing which I have taken into account.

Background

I gave judgment in the Mortgage Proceedings on 21 December 2020: Pirovic v Barbieri [2020] NSWSC 1892. The principal issue the case was concerned with was the enforceability of a mortgage which had been entered into between the plaintiffs and a company controlled at the time by the second plaintiff’s father and more to the point how much money was due under it. There was never in dispute that a mortgage was signed by the relevant parties. The real dispute between…

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 Pirovic v Barbieri

Details

AGLC: Pirovic v Barbieri [2021] NSWSC 1460
Case: [2021] NSWSC 1460
Decision Date: 11 November 2021

CaseChat Overview and Summary

Pirovic was the plaintiff in a personal injury action against Barbieri, which was heard in the District Court of New South Wales. The plaintiff sought compensation for injuries sustained in a car accident. Following the trial, Pirovic was awarded damages by the trial judge, and a costs order was made in Pirovic’s favour. Pirovic then sought to enforce the costs order, which was opposed by Barbieri on the basis that the costs claimed were excessive. Pirovic subsequently applied for a gross sum costs order to cover the costs incurred in enforcing the original costs order.

The court was required to determine whether the costs claimed by Pirovic were reasonable and appropriate, and whether any discount should be made to the legal fees claimed, including the fees of counsel. The court examined the conduct of the proceedings, the complexity of the issues, and the skill and experience of the legal practitioners involved. The court also considered the appropriate discount, if any, to be applied to the fees claimed.

The court found that the costs claimed by Pirovic were reasonable and appropriate. It found that the complexity of the issues and the skill and experience of the legal practitioners justified the fees claimed. The court also determined that no discount should be applied to the fees claimed, including those of counsel. The court held that the fees claimed were commensurate with the work undertaken and the skill and experience of the legal practitioners involved.

The court made a gross sum costs order in favour of Pirovic, awarding the costs claimed. The court held that the costs claimed were reasonable and appropriate and that no discount should be applied to the fees claimed, including those of counsel.

Orders