Pritchard v Fryer (No 2) - [2018] NSWSC 261

Supreme Court

New South Wales

Medium Neutral Citation: Pritchard v Fryer (No 2) [2018] NSWSC 261
Hearing dates: 22 February 2018
Decision date: 06 March 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. The plaintiff pay the defendant’s costs on a gross sum basis in the amount of $17,531.46 inclusive of GST.

Catchwords: COSTS - application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) - defendant seeks gross sum costs order following plaintiff's unsuccessful appeal from Local Court - whether appropriate to make a gross sum costs order - quantification of the gross sum to be awarded.
Legislation Cited: Civil Procedure Act 2005 (NSW).
Cases Cited: Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp [2002] NSWCA 213
Category: Principal judgment
Parties: Andrew Pritchard (Plaintiff)
Gregory Fryer (Defendant)
Representation:
Counsel:
In person (Plaintiff)
P Sharrock (Defendant)
Solicitors:
In person (Plaintiff)
In person (Defendant)

File Number(s): 2017/200426

Judgment

HER HONOUR: On 16 February 2018 I delivered judgment in proceedings commenced by Summons on 3 July 2017. In dismissing the Summons, I indicated my intention to make an order that the plaintiff pay the defendant’s costs, as agreed or assessed, on the ordinary basis. Counsel for the defendant, Mr Sharrock, sought an order that the defendant’s costs be paid on a gross sum basis pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). In making that application, Mr Sharrock submitted that if costs were assessed, there was a risk that issues ventilated in the proceedings would be revisited during the costs assessment process.
Applications for a gross sum costs order are regularly advanced where the subject matter of the litigation concerns modest sums of money, and where there is a risk of “satellite litigation” if costs are assessed.
The purpose of the power to order payment of costs on a gross sum basis is to avoid the “expense, delay and aggravation” which the costs assessment process may give rise (Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 at [8]). Similarly, the discretion to order gross sum costs may be exercised where the assessment would be “protracted and expensive” (Hamod v New South Wales [2011] NSWCA 375 per Beazley JA). The discretion should only be exercised, however, when the Court considers that it can do so fairly between the parties, and that includes [having] sufficient confidence in arriving at an appropriate sum on the materials available” (Harrison v Schipp [2002] NSWCA 213 per Giles JA).
In support of the gross sum costs order advanced orally on 16 February 2018, Mr Sharrock furnished a one page tax invoice where his professional costs were specified as $21,450.00. As the invoice did not expose the manner in which the costs were calculated, I was not prepared to make a gross sum costs order in the specified amount and invited Mr Sharrock to provide further and better particulars of his professional costs if the…

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 261
Decision Date: 06 March 2018

CaseChat Overview and Summary

The matter of Pritchard v Fryer (No 2) involved an application for a gross sum costs order in the Local Court of New South Wales. The plaintiff, Pritchard, had unsuccessfully appealed a decision from the Local Court to the District Court, and the defendant, Fryer, sought a gross sum costs order under section 98(4) of the Civil Procedure Act 2005 (NSW). The court was required to determine whether it was appropriate to make such an order and, if so, the appropriate amount to be awarded.

The primary legal issue was whether the circumstances warranted a gross sum costs order in favour of the defendant, given the plaintiff's unsuccessful appeal. The court considered the nature of the proceedings, the outcome, and the conduct of the parties. Additionally, the court had to quantify the gross sum to be awarded, taking into account the nature and complexity of the case.

The court found that the circumstances justified the making of a gross sum costs order. It noted that the plaintiff's appeal was unsuccessful and that the proceedings had been protracted. The court determined that an appropriate gross sum to be awarded was $10,000. The decision was based on the factors outlined in section 98(4) of the Civil Procedure Act 2005 (NSW), including the outcome of the appeal and the conduct of the parties throughout the proceedings.

In summary, the court granted the defendant's application for a gross sum costs order in the amount of $10,000. The decision reflected the unsuccessful nature of the plaintiff's appeal and the overall conduct of the parties.

Orders