Sayed v National Australia Bank Limited

[2021] NSWCA 28

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sayed v National Australia Bank Limited [2021] NSWCA 28
Hearing dates:	On the papers (Submissions 11 December 2020)
Date of orders:	9 March 2021
Decision date:	09 March 2021
Before:	Emmett AJA
Decision:	Order that the Respondent’s costs of the Summons filed on 15 August 2019 and the Notice of Motion filed on 19 August 2020 to be paid by the Applicant be fixed in the gross sum of $118,000.
Catchwords:	COSTS — party/party — court’s discretion — costs fixed on gross sum basis
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(4)
Cases Cited:	Sayed v National Australia BankLtd [2020] NSWCA 177
Texts Cited:	Nil
Category:	Costs
Parties:	Bilal (Bill) Sayed (Applicant) National Australia Bank Limited (Respondent)
Representation:	Counsel: Applicant (self-represented) G Lucarelli (Respondent) Solicitors: Dentons Australia Ltd; Thomson Geer from 2 March 2021 (Respondent)
File Number(s):	2019/253854
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 420 Date of Decision: 16 April 2015 Before: Harrison AsJ File Number(s): 2010/135614

Judgment

1. On 4 August 2020, I ordered that a summons filed by Mr Bill Sayed on 15 August 2019 seeking an extension of time for filing a notice of appeal (the Extension Summons) be dismissed. [1] I ordered Mr Sayed to pay the costs of the respondent to the Extension Summons, National Australia Bank Limited (the Bank). I also ordered that any question of varying the order for costs to seek a gross lump sum costs order be reserved to the Bank, any such application to be made within 14 days. By notice of motion filed on 19 August 2020, the Bank applied for an order under s 98(4) of the Civil Procedure Act 2005 (NSW) that its costs of the proceedings to be paid by Mr Sayed be fixed on a gross sum basis. No point has been taken by Mr Sayed concerning the time of filing the notice of motion. The parties have indicated that they are content for the application to be dealt with in the absence of oral argument and without further submissions.

   1. See Sayed v National Australia Bank Ltd [2020] NSWCA 177.

2. The assessment of costs is slightly complicated by the fact that the Extension Summons has been dealt with and managed concurrently with other appeal proceedings between Mr Sayed and the Bank (the Appeal Proceedings). The Bank relies on the affidavit sworn on 18 August 2020 by Ms Emma Hodgman of Dentons, who have acted for the Bank in relation to both the Extension Summons and the Appeal Proceedings. Both the Extension Summons and the Appeal Proceedings have been supervised by Ms Hodgman as the solicitor on the record. Ms Danielle Lysenko has had the day-to-day carriage of the proceedings under Ms Hodgman’s supervision.

3. A summary (the Summary) of the work undertaken for the period 15 August 2019 to 4 August 2020 by Dentons shows total fees of $162,181 plus GST. The Summary has been extracted from the accounts management system maintained by Dentons. That system captures information contained in the actual invoices sent by Dentons to the Bank, which includes a narration of the particular work performed.

4. The Summary indicates that a total sum of $4,158.50 plus GST is attributable to work that relates only to the Extension Summons. The balance of the entries in the Summary relate to both the Extension Summons and the Appeal Proceedings together. Ms Hodgman, Ms Lysenko and Mr George Lucarelli of counsel, who appeared for the Bank, have estimated that the amount attributable to the Extension Summons is approximately one half of the balance of $158,022.50, namely $79,011.25 plus GST. Accordingly, it would follow that the total amount of fees payable to Dentons attributable to the Extension Summons is $83,169.75 plus GST.

5. A summary of disbursements incurred in relation to both the Extension Summons and the Appeal Proceedings up to 4 August 2020 shows a total of $89,660.91. Disbursements excluding counsel’s fees amounted to $2,710.91. Included in this figure are the counsel’s fees incurred in relation to both the Extension Summons and the Appeal Proceedings up to 4 August 2020 that total $86,950 plus GST. That information is extracted from the accounts management system maintained by Dentons. Ms Hodgman and Mr Lucarelli each estimates that approximately half the counsel’s fees are attributable to the Extension Summons. Accordingly, counsel’s fees attributable to the Extension Summons amount to $43,475 plus GST. A further invoice from Mr Lucarelli relates to work involved in both the Extension Summons and the Appeal Proceedings, as well as a further set of proceedings commenced by the Bank against Mr Sayed. The fees shown in that invoice amount to $24,750 plus GST. Ms Hodgman and Mr Lucarelli each estimates that approximately one half of those fees is attributable to the Extension Summons. On the basis of the above, the total of counsel’s fees attributable to the Extension Summons is $55,850 plus GST, being $43,475 plus $12,375.

6. Ms Hodgman has expressed the opinion in her affidavit that the rates charged by Dentons and by Mr Lucarelli are in accordance with normal practice and are not unreasonable. There is no evidence to the contrary. The total of the professional fees is $139,019.75, excluding disbursements and GST.

7. Ms Hodgman expresses the opinion in her affidavit that, on an assessment of costs on the party/party basis, costs are generally reduced by from 10% to 20%. Generally, all disbursements are recovered in full. Ms Hodgman suggests that a further buffer of 10% be added to a 20% reduction, such that the total professional fees be reduced by 30%, from $139,019.75 to $97,313.82. If 50% of disbursements, being $1,355.46 and GST of $9,731.38 is added to that sum, the result is $108,400.66. Ms Hodgman also estimates that the costs and disbursements of the motion of 19 August 2020 would amount to $8,800 for both solicitors and counsel’s fees including GST. Court filing fees amounted to $971. That would give a total sum of $118,171.66. On that basis, Ms Hodgman seeks a lump sum of $118,000.

8. A lump sum is sought on the basis that there is good reason for concluding that Mr Sayed is impecunious and that the costs of assessing fees would be difficult if not impossible to recover. The basis for the conclusion that Mr Sayed is impecunious is as follows:

• Mr Sayed twice applied to this Court for pro bono assistance and the Court has twice been satisfied that he was eligible for pro bono assistance. That is to say the Court was satisfied that he was not able to afford to pay for legal representation.

• In both the Extension Summons and in the Appeal Proceedings, Mr Sayed was not represented by lawyers.

• In the course of case management hearings, Mr Sayed, when encouraged to obtain legal advice, responded that he had no money to pay for legal representation.

9. In the circumstances, it is appropriate to order that the Bank’s costs of the Extension Summons to be paid by Mr Sayed be fixed in the gross sum of $118,000, such sum to include the costs of the motion of 19 August 2020.

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Endnote

Decision last updated: 09 March 2021