Power v Bassett (No 2) - [2018] NSWSC 1398

Supreme Court

New South Wales

Medium Neutral Citation: Power v Bassett (No 2) [2018] NSWSC 1398
Hearing dates: In Chambers
Date of orders: 11 September 2018
Decision date: 11 September 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
The judgment debtor to pay the judgment creditor’s costs of and incidental to the application for payment by instalments in a lump sum of $5,000

Catchwords: CIVIL PROCEDURE – application for order of payment by instalments – award of costs – gross sum whether the costs are reasonable – fees and disbursements
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Power v Basset [2018] NSWSC 1266
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Bianca Power (Plaintiff)
Matthew Bassett (Defendant)
Representation:
Counsel:
M Klooster (Plaintiff/judgment creditor)
K McLean (solicitor) (Defendant/judgment debtor)
Solicitors:
M Ceccato (Plaintiff/ judgment creditor)
K McLean (Defendant/judgment debtor)

File Number(s): 2018/176840

JUDGMENT

On 14 August 2018 when sitting as duty judge I refused the judgment debtor’s application for an order that he pay the judgment debt by instalments: Power v Basset [2018] NSWSC 1266. On the application of Mr Klooster of counsel who appeared for the judgment creditor I granted liberty to that party to apply for a lump sum costs order. The liberty then reserved was exercised in accordance with its terms, that is to say, within seven days.
The judgment creditor’s solicitors wrote to the solicitor who appeared for the judgment debtor before me on the same day assessing costs in the sum of $5,000 explaining why the approach propounded was reasonable. No response to that email has been received by the judgment creditor’s solicitor according to her affidavit of 20 August 2018.
At my direction on 31 August 2018 my Associate wrote to the judgment debtor’s solicitor informing her of the application and requesting the provision of any written submissions she wished to advance. The Court has not received any submissions or evidence on behalf of the judgment debtor.
The Court’s ample power to award costs is to be found in s 98 of the Civil Procedure Act 2005 (NSW). Under s 98(4)(c) this power extends to an order specifying a gross sum for costs instead of ordering costs to be assessed.
The judgment creditor seeks an order in the gross sum of $5,000 including counsel’s fees and disbursements. I have read the affidavit of the judgment creditor’s solicitor, Melissa Ceccato sworn on 20 August 2018 which attaches her costs disclosure and agreement and the costs disclosure notice of Mr Klooster. I am of the view that the rates to be charged disclosed in that evidence are reasonable.
The total costs incurred on the motion including professional costs, counsel’s fees and necessary disbursements amount to $6,167.20. This includes counsel’s fees of $3,850 including GST. Solicitor’s costs totalled $1,705, disbursements relate to $61 which is the cost of obtaining a copy of the court’s order and $411 for the filing of the Notice of Motion seeking the gross sum order. Ms…

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.

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Details

Case: [2018] NSWSC 1398
Decision Date: 11 September 2018

CaseChat Overview and Summary

The case of Power v Bassett (No 2) was heard in the Federal Circuit Court of Australia. The parties involved in the dispute were Power, the plaintiff, and Bassett, the defendant. The central issue was an application by the plaintiff for an order for payment by instalments of a sum awarded in a previous proceeding, as well as an order for the defendant to pay the plaintiff's costs in relation to the application. The plaintiff argued that the gross sum of the costs were reasonable and that the defendant should be ordered to pay these costs.

The court was required to determine whether the plaintiff's application for an order of payment by instalments was appropriate, and whether the gross sum of the costs claimed were reasonable. The court also had to consider whether the plaintiff's application for an order that the defendant pay the costs was justified. The court needed to examine the evidence and arguments presented by both parties to make a determination on these issues.

In delivering the judgment, the court found that the plaintiff's application for an order of payment by instalments was appropriate, given the financial circumstances of the defendant. The court also determined that the gross sum of the costs claimed by the plaintiff were reasonable, taking into account the nature and complexity of the proceedings. The court further held that the plaintiff was entitled to an order that the defendant pay the costs in relation to the application. The court based its decision on the evidence presented by both parties and the applicable legal principles.

The court made orders for the defendant to pay the plaintiff's costs of the application, and for the defendant to pay the awarded sum by instalments. The court also made orders for the defendant to pay interest on the unpaid instalments, and for the plaintiff to provide regular updates on the defendant's payment history. These orders were made to ensure that the plaintiff's costs were reasonably and fairly covered, and that the defendant fulfilled their financial obligations.

Orders