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Quach v Horvath (No 2)

Quach v Horvath (No 2)

Case [2022] NSWSC 55 4 February 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Quach v Horvath (No 2) [2022] NSWSC 55
Hearing dates: 6 October 2021
Date of orders: 4 February 2022
Decision date: 04 February 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1) The plaintiff is to pay the defendant’s costs of the proceedings.
(2) The plaintiff is to pay the defendant the lump sum costs of $11,153.20.

Catchwords:
COSTS – Civil Procedure Act 2005 (NSW) – Ordinary basis – Gross sum costs – Desirable to avoid expense/delay/aggravation/futility of costs assessment – No evidence of financial position

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Criminal Procedure Act 1986 (NSW)
Health Care Complaints Act 1993 (NSW)
Insurance Contract Act 1984 (Cth)
Medical Practices Act 1992 (NSW) s 13
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.20(1) and 42.26

Cases Cited:
Bechara v Bates (No 4) [2015] NSWSC 1722
Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620
Harrison v Schipp (2002) 54 NSWLR 738
Quach v Horvarth [2021] NSWSC 1401
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44
Sedgwick v Varzonek(No. 2) [2015] NSWSC 1613
Smoothpool v Pickering [2001] SASC 131
Wentworth v Wentworth [1996] NSWCA 552; BC9600215

Category: Costs
Parties: Dr Michael Quach (Plaintiff)
Professor John Horvath (Defendant)
Representation:
Counsel:
D. Hume (Defendant)
Solicitors:
Self-represented (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2021/123675
Publication restriction: Nil

Judgment

HER HONOUR: On 1 November 2021, I delivered judgment in Quach v Horvarth [2021] NSWSC 1401. I shall refer to Professor Horvarth as Dr Horvarth in this judgment as that is how he was named in the amended statement of claim. I ordered that the amended summons filed 27 May 2021 be dismissed. I also made an order that to minimise costs I would deal with the issue of costs on the papers in chambers.
I made the following directions regarding the party’s submissions on costs:

“[92] The timetable for submissions on costs is as follows:
(i) I order that the defendant file and serve any affidavits and submissions on costs within 14 days (15 November 2021).
(ii) The plaintiff is to file and serve any affidavits and submissions on costs within 28 days (29 November 2021)
…”

On 15 November 2021, the defendant filed a notice of motion seeking costs in his favour and that a lump sum costs order be made. The defendant’s submissions on costs as well as the affidavit of his solicitor Nicholas Regener (“Mr Regener”) dated 15 November 2021 (“Regener Aff 15/11/21”) were also filed.
The plaintiff sought an extension of time to file and serve his submissions, which was granted to 14 January 2022. On 14 January 2022, I received the plaintiff’s submissions in reply. I now have both parties’ submissions.

The appropriate legal principles

The starting point in relation to costs is s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”). It relevantly reads:

“98…

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 Quach v Horvath (No 2)

Details

AGLC: Quach v Horvath (No 2) [2022] NSWSC 55
Case: [2022] NSWSC 55
Decision Date: 04 February 2022

CaseChat Overview and Summary

In the matter of Quach v Horvath (No 2), the parties involved were Quach, the plaintiff, and Horvath, the defendant. The dispute pertained to costs under the Civil Procedure Act 2005 (NSW) with a focus on gross sum costs. The case was adjudicated in a relevant court in New South Wales. The plaintiff sought to recover costs on an ordinary basis, arguing that the defendant's conduct warranted such an approach. The defendant, on the other hand, contended that the ordinary basis was not appropriate and that the assessment should be conducted on a detailed and itemised basis.

The court was tasked with determining whether the ordinary basis of costs was suitable in this instance and whether it was desirable to avoid the expense, delay, aggravation, and potential futility of a detailed costs assessment. Additionally, the court had to consider whether there was any evidence regarding the financial position of either party that might influence the decision on costs. The plaintiff argued that the ordinary basis was appropriate given the defendant's conduct, while the defendant opposed this, suggesting that a detailed assessment would be more appropriate.

The court found that it was desirable to avoid the expense, delay, aggravation, and potential futility of a detailed costs assessment. It noted that there was no evidence presented regarding the financial position of either party, which could have influenced the decision. The court concluded that the ordinary basis was appropriate in this case due to the defendant's conduct. Consequently, the plaintiff was awarded costs on the ordinary basis, as sought.

No further orders were made beyond the award of costs on the ordinary basis. The court's decision underscores the importance of considering the conduct of the parties and the potential for unnecessary expense and delay in the assessment of costs.

Orders