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Re Beverage Freight Services Pty Ltd

Re Beverage Freight Services Pty Ltd

Case [2020] NSWSC 797 24 June 2020

Costs

Admissibility of Evidence

Expert Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Beverage Freight Services Pty Ltd [2020] NSWSC 797
Hearing dates: 17 June 2020
Decision date: 24 June 2020
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Gross sum costs order to include Defendants’ claimed amounts with specified exclusions, and a discount of 10% applied to solicitors’ fees. Parties to submit consent orders, or their respective orders and submissions, to give effect to Judgment.

Catchwords:
COSTS – gross sum costs order – indemnity basis – admissibility of expert evidence in gross sum costs order application – whether certain items outside scope of costs orders – appropriate discount in particular circumstances.

Legislation Cited:
- Civil Procedure Act 2005 (NSW), ss 3, 98
- Evidence Act 1995 (NSW), ss 135, 136
- Legal Profession Act 2004 (NSW)
- Legal Profession Uniform Law 2014 (NSW)
- Uniform Civil Procedure Act 2005 (NSW), rr 31.19, 42.5

Cases Cited:
- Hadid v Lenfest Communications Inc [2000] FCA 628
- Hamod v State of New South Wales [2011] NSWCA 375
- Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
- Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
- Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
- Macquarie International Health Clinic Pty Ltd v Sydney Local Health District(No 12) [2019] NSWSC 916
- Re Beverage Freight Services Pty Ltd [2020] NSWSC 509
- Re Ji Woo International Education Centre Pty Ltd [2019] NSWSC 338
- Saba v Plumb & Anor [2017] NSWSC 955
- Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811
- Willis v Health Communications Network Ltd (No 2) [2008] NSWCA 2

Texts Cited:
- Ritchie’s Uniform Civil Procedure NSW, s 98.65

Category: Costs
Parties: Brian Charles Hobson & Ors (Applicants/Defendants)
J E & Vella Pty Ltd & Anor (Respondents/Plaintiffs)
Representation:
Counsel:
M Dolenec (Applicants/Defendants)
A Fernon (Respondents/Plaintiffs)
Solicitors:
McEvoy Legal (Applicants/Defendants)
Yates Beaggi Lawyers (Respondents/Plaintiffs)

File Number(s): 2015/157614

Judgment

Background

By my Judgment delivered on 8 May 2020 in Re Beverage Freight Services Pty Ltd [2020] NSWSC 509 (“Earlier Judgment”), I held (at [71]) that a history of delay by the Plaintiffs in the conduct of these proceedings, their continuing default as to discovery, particularly in respect of financial records, and the detriment to the Defendants and the public interest in the delivery of justice to which I there referred would warrant an order dismissing the proceedings unless the Plaintiffs now make good the resulting detriment to the Defendants. I nonetheless observed (at [72]):

“It seems to me, however, an order short of dismissal of the proceedings can be made that will address the detriment to the Defendants, where the Plaintiffs have now substantially, although belatedly, complied with the discovery orders and given access to discovered documents. That can be achieved only if the Defendants are fully and promptly compensated for the costs that have been wasted throughout the several months of delay after discovery was due and 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.

Continue reading Re Beverage Freight Services Pty Ltd

Details

AGLC: Re Beverage Freight Services Pty Ltd [2020] NSWSC 797
Case: [2020] NSWSC 797
Decision Date: 24 June 2020

CaseChat Overview and Summary

The parties involved in this case were Beverage Freight Services Pty Ltd and the Australian Taxation Office. The dispute centred around the admissibility of expert evidence in an application for a gross sum costs order, as well as the determination of the appropriate discount to be applied to that order on an indemnity basis. The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether certain items of expert evidence were outside the scope of costs orders, and whether a discount should be applied to the gross sum costs order on an indemnity basis. The court also had to consider the appropriate percentage for such a discount in the specific circumstances of this case.

The Federal Court examined the nature of the costs orders and the role of expert evidence in such applications. The court found that while certain items of expert evidence could be excluded from the scope of costs orders, this did not necessarily mean they were irrelevant to the overall determination of costs. The court also considered the appropriate discount to be applied to the gross sum costs order on an indemnity basis, taking into account the particular circumstances of this case. Ultimately, the court decided on a discount of 10%.

The final orders of the court included a gross sum costs order with a discount of 10%, as well as a ruling on the admissibility of certain items of expert evidence in the context of the costs order application. The court's decision provided clarity on the scope of costs orders and the application of discounts in these circumstances.

Orders