Saraceni v Jones

In the matter of Saraceni v Jones, the primary issue before the court was the interpretation of a consent costs order, formulated and agreed upon by the parties after the delivery of a previous judgment. The respondents sought to claim costs under a costs agreement, arguing that the order allowed for indemnity costs, solicitor and client costs, or special costs. The court was tasked with determining whether the costs order denoted indemnity costs, or alternatively, solicitor and client costs, and whether it permitted the respondents to claim costs beyond the applicable costs scale item limit.

The court examined the principles governing indemnity costs and noted that the context, conduct of the proceedings, and terms of the costs order did not support an objectively determined intention to provide for indemnity costs. The court also considered the respondents' argument that the expression'reasonable costs incurred' should be construed to mean costs on a solicitor and client basis. However, the court found that neither the standard order for indemnity costs nor an order for costs reasonably incurred on a solicitor and client basis found support in the terms of the costs order.

The court concluded that the costs order did not denote indemnity costs or allow for costs to be claimed on a solicitor and client basis. The order only permitted the respondents to claim costs that were reasonable in the circumstances, subject to the maximum hourly and daily rates set out in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010. Consequently, the respondents were not entitled to claim costs above the applicable costs scale item limit.

The court's decision clarified the interpretation of the costs order and provided guidance on the principles applicable to the making of indemnity costs orders. It reinforced the importance of considering the context and terms of the order when determining the scope of costs recoverable by the parties. The court's reasoning highlighted the need for a careful analysis of the language used in costs orders and the limitations imposed by relevant legislation and rules.