Schmid v Skimming (No 2) - [2020] VSC 573

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 05027

MICHAEL KARL SCHMID	Plaintiff
v
ROGER JAMES SKIMMING (and others according to the Schedule attached)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	Hearing 21 July 2020 further material filed 4 September 2020
DATE OF JUDGMENT:	8 September 2020
CASE MAY BE CITED AS:	Schmid v Skimming & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 573

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PRACTICE AND PROCEDURE – Group proceedings – Whether uplift fee in conditional costs recoverable – Uplift fee of 25% recoverable for administration of settlement – Approval of outstanding fees and disbursements, calculation of fees for settlement administration.

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APPEARANCES: 21 July 2020	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin QC and Mr A. Fraatz	Maddens Lawyers
For the Defendant	Mr G. Ioannides	Hall & Wilcox
For the Fourth Defendant	Mr L. Macdonald	Hall & Wilcox

HER HONOUR:

On 17 August 2020 I approved the settlement of a group proceeding brought by Mr Schmid for injury, loss and damage arising from a bushfire in Scotsburn on 19 December 2015.[1] At that time I also approved a substantial part of the costs and disbursements claimed by the plaintiff’s solicitors. The costs and disbursements as approved are to be paid from the settlement sum of $10,500,000 prior to distribution to group members. In my reasons of 17 August 2020 (the ‘earlier reasons’) I directed that further material be provided in order to deal with a number of outstanding matters.
[1]Schmid v Skimming & Ors [2020] VSC 493 (‘Schmid v Skimming & Ors’).

Those matters were:

(a) Outstanding disbursements between 26 February 2020 and to 21 July 2020;

(b) Fees in conducting the proceeding claimed between 26 February and 21 July 2020; and

(c) Incurred and anticipated fees and disbursements in administering the scheme.

The plaintiff provided further material as directed in relation to the outstanding matters. I received a confidential affidavit of Kathryn Amy Emeny sworn 1 September 2020 (the ‘1 September affidavit’), a confidential affidavit of Kathryn Amy Emeny (unsworn) (the ‘7 September affidavit’) and a third expert report of Ms Catherine Dealehr dated 1 September 2020. As a result of that further material, and allowing that some matters that were estimates in the earlier material are now able to be quantified rather than estimated, the costs now claimed have been recalculated.[2] These reasons should be read with the earlier reasons.
[2]Ibid [7].

Outstanding disbursements to 21 July 2020

Dealing first with Dr Barter’s outstanding fees I have now been provided with the bundle of invoices upon which the amount is based. They demonstrate that Dr Barter’s involvement spanned the period from December 2017 to November 2019. Within that time frame Dr Barter undertook work within seventeen different months. That work included various research elements as well as scientific testing and the preparation of technical drawings. As well as report preparation it included conferences with…

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 Schmid v Skimming (No 2)

Details

AGLC: Schmid v Skimming (No 2) [2020] VSC 573
Case: [2020] VSC 573
Decision Date: 8 September 2020

CaseChat Overview and Summary

In the matter of Schmid v Skimming (No 2), the parties involved were the plaintiff, Schmid, and the defendant, Skimming. The dispute revolved around the costs incurred in a group proceeding, specifically whether an uplift fee in conditional costs was recoverable. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether the uplift fee of 25% was recoverable for the administration of the settlement. This involved examining whether such fees were for the administration of the settlement or merely part of the conditional costs agreement. The court also needed to assess the calculation of fees for settlement administration and the approval of outstanding fees and disbursements.

The court held that the uplift fee of 25% was indeed recoverable as it was part of the administration of the settlement. The court found that the uplift fee was not simply a part of the conditional costs agreement but was a necessary component of the settlement administration. The court further ruled that the calculation of the fees for settlement administration was appropriate and that the outstanding fees and disbursements should be approved. The court's decision provided clarity on the recoverability of uplift fees in group proceedings, ensuring that such fees were appropriately accounted for in the settlement administration.

Orders