Santos by his tutor McGuinness v St Vincent's Hospital Sydney Ltd (No 2)

[2023] NSWSC 901

Supreme Court

New South Wales

Medium Neutral Citation:

Santos by his tutor McGuinness v St Vincent’s Hospital Sydney Ltd (No 2) [2023] NSWSC 901

Hearing dates:

18 July 2023

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) the following funds held in Court for ordered costs be paid out of Court as follows:

 (a)  $300,000 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's ordered legal costs inclusive of GST.

 (b)  $344,56.46 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's solicitor/client legal costs inclusive of    GST.

Catchwords:

CIVIL PROCEDURE – prior court approval of settlement –application for orders for moneys to be paid out of court to person other than the plaintiff – legal costs – solicitor/legal cost – funds to be paid out of Court

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Luis Batista Santos by his tutor Robyn McGuinness v St Vincent’s Hospital Sydney Ltd (Supreme Court (NSW), Hamill J, 18 February 2022, unrep)

Santos by his tutor McGuinness v St Vincent’s Hospital Sydney Ltd [2022] NSWSC 893

Category:

Procedural rulings

Parties:

Luiz Batista Santos by his tutor Robyn McGuinness (Plaintiff)
St Vincent’s Hospital Sydney Ltd (Defendant)

Representation:

Counsel:
K Oldfield (Applicant on motion)

Solicitors:
Longton Legal Pty Ltd (Applicant on motion)

File Number(s):

2018/390721

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By notice of motion filed in this Court on 10 July 2023, the applicant, Longton Legal Pty Ltd, seeks orders as follows:

“1. Pursuant to s 77(4) of the Civil Procedure Act 2005 NSW the following funds held in Court for ordered costs to be paid out of Court as follows:

(a)    $300,000 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's ordered legal costs inclusive of GST.

(b)    $34,456.46 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's solicitor/client legal costs inclusive of GST.”

2. The applicant relies on the affidavit of Ms Laura Green of 10 July 2023, which became Exhibit A in the proceedings.

3. The background to the matter is an injury sustained by the plaintiff in the substantive proceedings on 26 May 2007, when he presented to St Vincent's Hospital with a swollen epiglottis. As a result of injury suffered following that presentation, the plaintiff retained the applicant on the motion on 2 August 2017. On that date, a costs agreement was signed by the plaintiff and his partner Mr Hans Eriksson. Subsequently, on 17 December 2018, Ms Robyn McGuinness agreed to act as tutor for the plaintiff. Proceedings were commenced in this Court on 19 December 2018. On 7 February 2019, Ms McGuinness, as the plaintiff's tutor, signed a costs agreement with the applicant.

4. On 13 December 2021, the parties in the substantive proceedings attended mediation. As a result of the mediation, the parties reached an in principle agreement to a consent judgment in favour of the plaintiff against the defendant in the sum of $1,100,000, () plus party/party costs in the sum of $300,000.

5. On 18 February 2022, Wright J approved the proposed settlement: Luis Batista Santos by his tutor Robyn McGuinness v St Vincent’s Hospital Sydney Ltd (Supreme Court (NSW), 18 February 2022, unrep). His Honour further ordered that the moneys be paid into Court. Those moneys were paid into Court on around 7 April 2022 by the defendant. On 3 June 2022, a notice of motion was filed on behalf of the plaintiff by his then representatives, that is, the applicant, seeking orders for payment out of the funds held in Court as follows:

“(a) $395,570 be paid to the plaintiff's solicitors, that is the applicant, in full satisfaction of the solicitor/client legal costs inclusive of disbursements and GST.

(b) $1,100,067.78 be paid to Hans Eriksson to be invested in accordance with the Statement of Advice prepared by Sakshi Bagaria of Advice Wise.”

6. On 16 June 2022, the plaintiff's application for payment out of the funds was heard by Hamill J: Santos by his tutor McGuinness v St Vincent’s Hospital Sydney Ltd [2022] NSWSC 893. His Honour was, however, not prepared to make the orders as the proposal was not free of risk; that risk being that the plaintiff's money could potentially be given to somebody else.

7. That point appeared to be the point of departure between the plaintiff and the then solicitors for the plaintiff, that is the applicant. The applicant, having, as at 9 August 2022, received no further instructions with respect to progressing the matter, filed a Notice of Intention to file a Notice of Ceasing to Act with the Court. That notice was served on the plaintiff's tutor. A Notice of Ceasing to Act was subsequently filed with the Court in September 2022.

8. As a consequence of indicating the intention to file the Notice of Ceasing to Act on 10 August 2022, Ms Green on behalf of the applicant, sent to the plaintiff's tutor a copy of the applicant's tax invoice dated 30 June 2022 for work performed on the substantive matter in an amount of $377,091.57. Those costs were subsequently assessed and on 4 May 2023, a Certificate of Determination of Costs Assessment was issued. The amount determined in the assessment totalled $334,456.46, which I note is the total amount sought to be paid out by the applicant.

9. On 12 May 2023, consistent with the costs assessment, an order was made by this Court that the plaintiff pay Longton Legal the sum of $334,456.46. As the funds for costs in the substantive matter are currently held in this Court, an order is required by s 77(4) of the Civil Procedure Act for payment out of that sum.

10. The applicant has engaged in communication with the plaintiff's current solicitors in relation to the orders sought. Through that correspondence, the plaintiff's solicitors have indicated they have no objection to the orders sought and the matter is indeed mentioned today by the applicant's solicitors on behalf of the plaintiff's solicitors. In the circumstances set out above, I am of the view that the orders sought in the notice of motion are appropriate.

11. I make the following orders:

1. Pursuant to s 77(4) of the Civil Procedure Act 2005 (NSW) the following funds held in Court for ordered costs be paid out of Court as follows:

1. $300,000 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's ordered legal costs inclusive of GST

2. $344,56.46 be paid to Longton Legal Pty Ltd in full satisfaction of the plaintiff's solicitor/client legal costs inclusive of GST.

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Decision last updated: 02 August 2023