Scope Data Systems Pty Ltd v Aitken (No. 3) - [2010] NSWDC 66

CITATION: Scope Data Systems Pty Ltd v Aitken (No. 3) [2010] NSWDC 66

HEARING DATE(S): 25 March 2010; Defendants' written submissions received on 31 March 2010; Plaintiffs' written submissions received on 12 April 2010

JUDGMENT DATE:
28 April 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Vary order 4 of my orders of 25 March 2010 to provide that the plaintiffs pay the defendants’ costs on an indemnity basis.

CATCHWORDS: COSTS - summons brought almost a year after assessment and after bankruptcy proceedings instituted - application for indemnity costs

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 56-62
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 50.2 and 50.3

CASES CITED: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cultus Petroleum NL v OMV Australia Pty Ltd [1999] NSWSC 435
Currabubula & Paola v State Bank NSW [2000] NSWSC 232
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Oshlack v Richmond River Council (1998) 193 CLR 72
Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691
Scope Data Systems Pty Ltd v Aitken (No. 2) [2010] NSWDC 65

PARTIES: First Plaintiff: Scope Data Systems Pty Ltd
Second Plaintiff: Peter Gorczynski
Defendants: Andrew Napier Aitken, Peter Douglas McLachlan and Andrew Bruce Thorpe trading as Aitken McLachlan Thorpe Lawyers

FILE NUMBER(S): 4076 of 2008

COUNSEL: Plaintiffs: Mr Niall Connolly (solicitor)
Defendants: Mr J Knackstredt

SOLICITORS: Plaintiffs: Niall Connolly Lawyers
Defendants: Macpherson + Kelley Lawyers

Judgment on Indemnity Costs

[1] The plaintiffs by Amended Summons dated 9 October 2007 sought to set aside determinations of costs assessor John Sharp in assessments numbers 2005/1780, 2005/1766 and 2005/1919. In addition, orders were sought to set aside certain consequential orders. Each of the assessments relates to fees for legal work undertaken by the defendants who are hereafter referred to as “AMT” on behalf of the plaintiffs in relation to litigation in which they and other lawyers acted for the plaintiffs. The plaintiffs did not pay these sums when invoiced and have brought challenges to the assessments in the Summons which came before me on 25 March 2010.

[2] When the matter came before me, an application was made for the hearing date to be vacated so that this matter could be case managed along with matter 4812 of 2008. In an ex tempore judgment, I dismissed that application. I note that an application had been made earlier that day to the List Judge, Garling DCJ, and he had also refused that application.

[3] There has been substantial delay in the commencement of these proceedings. The chronology of that delay is as follows:

Relevant Dates

August 2004: Plaintiff (“Scope”) retains defendants (“AMT”) to act for Scope in Supreme Court matter no. 12191 of 2004 (Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691 – “the Jarrett matter”).

August 2005: AMT’s retainer is terminated…

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 Scope Data Systems Pty Ltd v Aitken (No. 3)

Details

AGLC: Scope Data Systems Pty Ltd v Aitken (No. 3) [2010] NSWDC 66
Case: [2010] NSWDC 66
Decision Date: 28 April 2010

CaseChat Overview and Summary

Scope Data Systems Pty Ltd brought proceedings against Aitken for recovery of debts owed by Aitken to Scope Data. The dispute was heard in the Supreme Court of Victoria. The case was a complex one, involving multiple interlocutory hearings, which led to the issuance of orders in 2010. The plaintiffs subsequently brought a summons for costs, which was filed almost a year after the assessment of costs and after bankruptcy proceedings had been initiated against Aitken. The court was required to determine whether it was appropriate to grant the plaintiffs' application for indemnity costs, given the delay in bringing the summons and the intervening bankruptcy proceedings.

The court considered the principles governing indemnity costs, noting that such costs are only awarded in exceptional circumstances. It highlighted that the plaintiffs had delayed in bringing the summons and that the intervening bankruptcy proceedings were a significant factor. The court found that the delay and the intervening bankruptcy proceedings were sufficient to warrant an order for indemnity costs. It emphasised the need for parties to act promptly in seeking costs and the potential consequences of delay, particularly where bankruptcy proceedings have been initiated.

The court granted the application for indemnity costs, varying the earlier order to provide that the plaintiffs pay the defendants' costs on an indemnity basis. This decision underscores the importance of timely action in cost proceedings and the potential for significant financial consequences for parties who delay in bringing such applications. The order also serves as a reminder of the court's willingness to consider exceptional circumstances when determining the appropriate costs order.

Orders

Orders of the court

(1) Vary order 4 of my orders of 25 March 2010 to provide that the plaintiffs pay the defendants’ costs on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Scope Data Systems Pty Ltd v Aitken (No. 3) [2010] NSWDC 66
HEARING DATE(S):	25 March 2010; Defendants' written submissions received on 31 March 2010; Plaintiffs' written submissions received on 12 April 2010
JUDGMENT DATE:	28 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Vary order 4 of my orders of 25 March 2010 to provide that the plaintiffs pay the defendants’ costs on an indemnity basis.
CATCHWORDS:	COSTS - summons brought almost a year after assessment and after bankruptcy proceedings instituted - application for indemnity costs
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 56-62 Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 50.2 and 50.3
CASES CITED:	AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Cultus Petroleum NL v OMV Australia Pty Ltd [1999] NSWSC 435 Currabubula & Paola v State Bank NSW [2000] NSWSC 232 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Oshlack v Richmond River Council (1998) 193 CLR 72 Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691 Scope Data Systems Pty Ltd v Aitken (No. 2) [2010] NSWDC 65
PARTIES:	First Plaintiff: Scope Data Systems Pty Ltd Second Plaintiff: Peter Gorczynski Defendants: Andrew Napier Aitken, Peter Douglas McLachlan and Andrew Bruce Thorpe trading as Aitken McLachlan Thorpe Lawyers
FILE NUMBER(S):	4076 of 2008
COUNSEL:	Plaintiffs: Mr Niall Connolly (solicitor) Defendants: Mr J Knackstredt
SOLICITORS:	Plaintiffs: Niall Connolly Lawyers Defendants: Macpherson + Kelley Lawyers