Ross v Padget
[2016] NSWSC 1851
•16 December 2016
Supreme Court
New South Wales
Medium Neutral Citation: Ann Ross v John William Padget [2016] NSWSC 1851 Hearing dates: Costs on the Papers Decision date: 16 December 2016 Before: Sackar J Decision: See paragraph [21]
Legislation Cited: Civil Procedure Act 2005 Category: Costs Parties: Ann Ross (plaintiff) Representation: Counsel:
Solicitors:
J T Johnson (plaintiff)
R Weaver (defendant)
File Number(s): 2012/264331 Publication restriction: N/A
Judgment
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These proceedings involved a claim by the plaintiff, Ms Ann Ross against the defendant Mr John William Padget seeking provision from the estate of the late Bill Padget, Mr John Padget’s father. Mr Bill Padget died in testate on 9 March 2010 leaving an estate of approximately $30 million. Mr Padget, the sole child of the deceased was the sole beneficiary under the intestacy.
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During the course of the hearing (the third day) and following lengthy negotiations the parties reached an agreement on terms which were set out in a deed dated 27 August 2015 (‘Deed’).
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Ms Ross signed the Deed, as did other relevant persons including her mother and son. Consent orders were made by Bergin CJ in Eq on 13 April 2016.
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However, on 18 April 2016 Ms Ross filed a notice of motion returnable on 22 April 2016 containing in short, orders seeking that the consent orders made on 26 August 2015 be set aside and the matter be relisted “for judgment”.
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The matter next came before Hallen J in May 2016 and his Honour made directions for the service of evidence. The matter came before his Honour again on 22 June 2016 and ultimately was referred to Stevenson J who listed the matter for hearing on 28 July 2016.
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On 28 July 2016 the matter came before myself. However, Mr Johnson of Counsel who appeared for Ms Ross indicated that the motion was to be withdrawn.
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Mr Padget thereafter proceeded by way of motion (dated 5 December 2016) seeking an order for the costs in meeting Ms Ross’s motion to set aside the consent orders and associated costs incurred by him in enforcing an order for possession of properties at 1/2A Tobruk Avenue and 2/2A Tobruk Avenue Cremorne which Ms Ross, her mother and son had occupied from time to time.
The parties’ submissions
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Mr Padget submits that Ms Ross’s conduct in seeking to avoid the effect of certain orders originally made by consent had put him to considerable expense and that the court should infer that the filing of her motion in April 2016 was merely a delaying tactic to avoid compliance with the consent orders she had agreed which involved providing vacant possession of the Tobruk Avenue properties. It is pointed out by Mr Padget that no explanation was proffered to the Court as to why her motion was withdrawn and that the Court should further infer that she never truly believed that he application had any merit.
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Accordingly, Mr Padget makes an application for a gross sum costs order pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW) in the sum of $131,994.73. On the basis of the history of the matter and Ms Ross’s conduct, it is submitted that no discount should be applied to that claim.
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It is further pointed out that Higgins Lawyers’ tax invoice dated 23 October 2016 notes professional costs in the sum of $42,757.00 inclusive of GST. Further there are disbursements of $78,457.73 inclusive of GST, the bulk of which are Counsel’s fees. Counsel’s tax invoices are attached to the affidavit.
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It is accepted by Ms Ross’s representatives that at the time of the filing of her original notice of motion she was an undischarged bankrupt.
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In submissions supplied to the Court Ms Ross does not appear to challenge Mr Padget’s entitlement to a costs orders of some sort. That is clearly an appropriate concession.
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However, she submits that there are two questions for the court. First, whether it is appropriate to order a gross sum and secondly, the appropriate gross sum in the circumstances.
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On the evidence provided she further submits that it is difficult for anyone to determine whether the costs which have been sought by way of a lump sum are fair and reasonable.
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She submits that the evidentiary material before the Court in support of such an application must be such as to give the Court the appropriate confidence so that it can arrive at an appropriate gross sum. Further, it is submitted that that may but need not necessarily include expert evidence.
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A number of authorities have been referred to which suggest that significant discounts should be applied to the fixing of a lump sum but that such an assessment is appropriate in the exercise of judicial discretion where there is likely to be further delay occurring as a result of a costs assessment.
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In short, it is submitted that the evidentiary materials before the Court are inadequate without more detail being provided.
Consideration
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In my view, enough time and expenditure has been incurred in dealing with a matter which should have been finalised a very long time ago. I therefore think that it is appropriate in the circumstances to award a gross sum cost order.
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Criticism to some extent is made of the adequacy of the material before the Court for this purpose. However, I have carefully considered the material that does seem to me that prima facie the invoices of Counsel are in an orthodox form with sufficiently detailed descriptions of the work undertaken and the time spent. A point is taken that there is no evidence of any disclosure having taken place or any costs agreement. I am of the view that the Court is entitled to assume that legal practitioners, holding practising certificates, have observed their legislative obligations and if someone wishes to assert otherwise they need to do so positively and not rhetorically.
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The invoice from Higgins Solicitors provides a broad description of what has been undertaken. However, given the history of the matter and the various activities described in the affidavit of Mr Ross Higgins, I do not believe the amount is unreasonable.
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I am confident, given my own experience and especially where the Court is to take a broad brush approach to the quantification of a gross sum, that I should make a gross sum costs order pursuant to section 98(4) of the Act in the sum of $131,994.73, however applying a discount of 25% to that amount.
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Choosing any discount rate in circumstances such as this is as broad brush as the exercise itself but it should act as a sufficient conservative safeguard.
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I would invite the parties to prepare short minutes to give effect to these reasons. They may be sent to my Associate and I will make the orders in chambers.
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Decision last updated: 19 December 2016
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