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Russo v Russo (No 4)

Russo v Russo (No 4)

Case [2016] NSWSC 1133 16 August 2016

Costs

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Standing

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Russo & Ors v Russo & Ors (No. 4) [2016] NSWSC 1133
Hearing dates: 16 August 2016
Date of orders: 16 August 2016
Decision date: 16 August 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Lump sum costs order made. Judgment for the plaintiff against the third defendant for costs in the sum of $345,000.31.

Catchwords: COSTS - application for a specified gross sum costs order (“a lump sum costs order”) against the third defendant pursuant to Civil Procedure Act, s 98(4)(c) - previous costs orders made against third defendant - lengthy and complex litigation - third defendant is impecunious - whether the Court should make a lump sum costs order - whether the successful party may be disadvantaged by a formal costs assessment.
Legislation Cited: Civil Procedure Act 2005, s 98(4)(c)
Cases Cited: Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
Harvey v Barton (No 4) [2015] NSWSC 809
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Russo v Russo [2015] NSWSC 17
Russo v Russo (No. 2) [2015] NSWSC 449
Russo v Russo (No. 3) [2015] NSWSC 1849
Category: Costs
Parties: First plaintiff: Angelo Phillip Russo
Second plaintiff: Rosemary Russo
Third defendant: John Russo
Representation: Plaintiffs: David Matthew Farrar, Farrar Lawyers
Third defendant: John Russo

File Number(s): 2011/280915
Publication restriction: No

EX TEMPORE Judgment

This is my fourth judgment in these proceedings. The plaintiffs now move for a specified gross sum costs order against the third defendant under Civil Procedure Act, s 98(4)(c), instead of assessed costs. For convenience, I will describe the order being sought as a “lump sum costs order”. The Court has already made an order for costs against the third defendant on the ordinary basis.
For the exercise of the Court’s discretion under s 98(4)(c), the plaintiff relies on the complexity of the proceedings and the incapacity of the unsuccessful party to satisfy any costs liability.

Applicable Legal Principles

If the additional costs of a formal costs assessment would disadvantage the successful party due to the potential inability of the unsuccessful party to pay the costs order in any event, this may incline the Court to make a lump sum costs order: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213. The capacity of the unsuccessful party to satisfy any costs liability has been recognised as a relevant consideration in the making of a lump sum costs order: Hamod v New South Wales [2011] NSWCA 375 (“Hamod”) at 816-817 and Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121.
Moreover, if a Court can say, based upon its prior experience of the litigation in question, that any further costs assessment is likely to be unduly protracted and will add to costs unnecessarily, then the Court may take that into account in deciding whether to make a lump sum costs order: see Harvey v Barton (No 4) [2015] NSWSC 809

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 Russo v Russo (No 4)

Details

AGLC: Russo v Russo (No 4) [2016] NSWSC 1133
Case: [2016] NSWSC 1133
Decision Date: 16 August 2016

CaseChat Overview and Summary

The case of Russo v Russo (No 4) involved an application for a specified gross sum costs order against a third defendant in the context of protracted and complex litigation. The parties were engaged in a legal dispute, and the applicant sought to recover costs under section 98(4)(c) of the Civil Procedure Act. The third defendant, who was already subject to previous costs orders, argued that they were impecunious and unable to pay any further costs. The central legal issue before the court was whether to grant a lump sum costs order against the impecunious third defendant, considering the potential disadvantage to the successful party in a formal costs assessment.

The court examined the criteria for making a lump sum costs order and the circumstances of the case. It noted the extensive and complicated nature of the litigation, the third defendant's financial status, and the potential impact on the applicant if a formal costs assessment were to proceed. The court recognised the need to balance the interests of the successful party with the financial realities of the third defendant. After careful consideration, the court concluded that it was appropriate to grant a lump sum costs order, given the circumstances of the case and the need to avoid the disadvantages of a formal costs assessment.

The court determined that the order should reflect the complexity of the litigation and the third defendant's financial situation. It ordered that the third defendant pay a specified gross sum of costs to the applicant. This decision aimed to resolve the costs issue while considering the financial constraints of the third defendant and the need to avoid potential disadvantages to the successful party in a formal costs assessment. The court's decision provided a resolution to the costs issue in the ongoing litigation between the parties.

Orders