Saad v State of NSW (No 4)
[2014] NSWSC 353
•12 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Saad v State of NSW (No 4) [2014] NSWSC 353 Hearing dates: 12/03/2014 Decision date: 12 March 2014 Jurisdiction: Common Law Before: Garling J Decision: In matter number 2007/265173:
(1) Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the costs ordered to be paid by the plaintiffs to the defendant on 5 February 2014 are to be paid in a gross sum of $38,225.
(2) Order that the plaintiffs in those proceedings are to pay the costs of the motion of 19 February 2012 2014.
In proceedings number 2008/20521:
(3) Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the costs ordered to be paid by the plaintiffs on 5 February 2014 are to be paid in a gross sum of $12,741.67.
(4) Order the plaintiffs to pay the costs of the Notice of Motion of 19 February 2014.
Catchwords: PROCEDURE - costs - general rule costs follow the event - whether costs order ought to be paid as a specified gross sum under s 98 Civil Procedure Act 2005 - where no evidence before Court to suggest substantive dispute of specified gross sum - whether consistent with overriding purpose of s 56 Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005 Cases Cited: Saad v State of New South Wales [2014] NSWSC 214 Category: Interlocutory applications Parties: Fred Saad (P) (2007/265173)
Ashley Saad (P) (2008/289620)
State of New South Wales (D) (in both matters)Representation: Counsel:
C Canceri (P)
I Temby QC / D Villa (D)
Solicitors:
Margiotts Solicitors (P) (both matters)
NSW Crown Solicitors Office (D) (both matters)
File Number(s): 2007/265173, 2008/289620
ex tempore Judgment
On 5 February 2014, the Court ordered that the final hearing of these proceedings be adjourned and the dates vacated. On that day, the Court ordered that the plaintiffs pay the defendant's costs of and occasioned by the adjournment, namely, the costs thrown away by the late application. As well, the Court ordered that the plaintiffs pay the costs of the motion to adjourn the proceedings. The question of by whom those costs were to be paid, if not the plaintiffs, and the basis upon which the costs were to be paid and any other associated matter were stood over for further application: see Saad v State of New South Wales [2014] NSWSC 214.
On 19 February 2014, the defendant, State of New South Wales, in each matter filed a Notice of Motion in which it sought an order that the costs ordered to be paid to the Court on 5 February 2014 ought be paid in a gross sum, that the costs ought be payable forthwith, and that the plaintiffs pay the costs of the Notice of Motion.
In support of that application, a very detailed affidavit was filed by Ms Koch, the solicitor for the defendant, setting out the hourly rates of the solicitors and other staff involved in the proceedings. It also set out by reference to the billing records kept by the New South Wales Crown Solicitor's Office all of the items which had been billed by way of professional costs and fees; and annexing to it, copies of memoranda of fees and other disbursements which Ms Koch identifies as being relevant to the costs thrown away. The total of these figures, broadly speaking, comes to a little over $60,000.
On 19 February 2014, when the matter was before the Court, it was indicated by the defendant that it would submit to the Court that an appropriate allowance by way of a gross costs order was to allow 80% of the costs actually incurred, and the costs identified as being thrown away by the Court's orders. On that day Mr Margiotta, a solicitor, appeared for the plaintiffs. As I explained to him, given that the total sum being claimed after reduction by 20% was about $50,000, and given the basis upon which the claim was being made, he would have an opportunity to respond to the reasonableness of the sum claimed. I said to him this:
"There are a number of ways you can respond to it, Mr Margiotta. It is entirely a matter for you. One way in which you might respond is to do it yourself; another of which is to get an expert solicitor to respond on your behalf; and the third one would be to file an affidavit of a cost consultant."
Mr Margiotta apparently understood this. At least, he said that he did. I then ordered that the plaintiffs file any evidence with respect to the issue of the quantum of costs by 4pm, on 5 March 2014. No affidavit was filed within that time by or on behalf of the plaintiffs.
This morning, when the matter was before the Court, an affidavit of Mr Margiotta sworn 12 March 2014 was filed in Court. The reading of it was opposed. I upheld the objection to the reading of it, for the brief reasons which I gave orally.
It follows that there is no evidence before the Court in which there is any dispute of substance raised with respect to the sum claimed by the defendant with respect to the costs orders made on 5 February 2014.
Mr Canceri, counsel for the plaintiffs, has submitted that there is no dispute with respect to that component of the costs which is claimed with respect to the costs of the Notice of Motion dealing with the adjournment. However, he submits with respect to the costs of and occasioned by the adjournment itself, that it may be that an expert cost consultant who looked at the claim by the defendants would come to the view that 80% was an insufficient reduction in the circumstances of the case. I accept that there is such a possibility.
Equally, there is a possibility that a cost consultant would think, having regard to the rates charged by the New South Wales Crown Solicitor's Office and counsel retained by it, that a reduction by 20% was too great a reduction. The fact is, however, that, with respect to Mr Canceri, it is simply speculation to wonder what a cost consultant might do. The plaintiffs have had an opportunity to put on evidence either from a cost consultant, or perhaps even in hearsay form from a deponent who deposes to receiving advice from a cost consultant of a particular kind. The Court has no evidence at all before it which deals with this question.
In all of the circumstances, having regard to the sums of money involved and which might possibly be the subject of any dispute, it seems to me, particularly having regard to the overriding purpose contained in s 56 of the Civil Procedure Act 2005, that this is a case in which the Court ought to make a gross sum costs order. I form that view because the sum in issue is not large; the costs of having the costs assessed would be out of proportion to the sum being claimed; and there is an absence of any material at all before this Court which suggests that there could be any real issue about the sum claimed.
In all of the circumstances, it seems to me that it is in the interests of justice that the Court should exercise the power which it undoubtedly has under s 98 of the Civil Procedure Act to order that the costs orders made on 5 February 2014 be specified in the appropriate gross sum.
Initially, the State sought that the costs be payable forthwith. In light of other matters surrounding the case management of the proceedings and the possibility that costs may be claimed from someone other than the plaintiffs, the State does not press the Court to make such an order at the moment. That order can await further submission.
Accordingly, I will make the following orders:
In matter number 2007/265173:
(1) I order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the costs ordered to be paid by the plaintiffs to the defendant on 5 February 2014 are to be paid in a gross sum of $38,225.
(2) I order that the plaintiffs in those proceedings are to pay the costs of the motion of 19 February 2014.
In proceedings number 2008/289620:
(3) I order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the costs ordered to be paid by the plaintiffs on 5 February 2014 are to be paid in a gross sum of $12,741.67.
(4) I order the plaintiffs to pay the costs of the Notice of Motion of 19 February 2014.
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Decision last updated: 01 April 2014
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