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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 Ceccato has been a solicitor for 10 years. Her hourly rate is eminently reasonable for a solicitor of her experience.

7. The judgment, the subject of the dispute before me, is a judgment entered to enforce the outcome of the assessment of the judgment creditor’s costs payable by the judgment debtor made on review of a first instance assessment. Those costs were incurred in proceedings arising out of a building contract litigated in the District Court. The judgment debtor required the assessment and later initiated the review.

8. From the evidence read on his application to pay by instalments, I am satisfied that the judgment debtor is not in a position to pay the judgment debt, which currently stands in the sum of $299,772.07, forthwith. From his affidavit it appears that after payment of regular outgoings his net weekly income is around $1,000 and he has less than $500 in the bank.

9. I am satisfied that the charges made on a solicitor and client basis by Ms Ceccato and Mr Klooster are reasonable. Mr Klooster was called to the Bar in 2010 after practising as a solicitor for five years. He appeared on the initial directions hearing before the Registrar, prepared pertinent written submissions, and appeared on the hearing of the matter before me. I am satisfied his fees are reasonable.

10. The amount claimed of $5,000 represents about 80 per cent of total costs on a solicitor and client basis. I am of the view that this is reasonable when one considers costs on the ordinary basis. The sum is relatively modest and given the judgment creditors relevant impecuniosity, I think it unreasonable to require the judgment creditor to engage in a further assessment of costs over this amount. In the circumstances, I think it appropriate to exercise my discretion to make a lump sum costs order.

11. I make the following order:

1. 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.

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