Sedgwick v Varzonek (No. 3) - [2015] NSWSC 1982

Supreme Court

New South Wales

Medium Neutral Citation: Sedgwick v Varzonek (No. 3) [2015] NSWSC 1982
Hearing dates: 30 October 2015
Date of orders: 23 December 2015
Decision date: 23 December 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
A specified gross sum costs order assessed under Civil Procedure Act 2005, s 98(4)(c). The plaintiff’s costs are assessed in the sum of $175,000.

Catchwords:
COSTS - application for specified gross sum costs order under Civil Procedure Act 2005, s 98(4)(c) - whether a specified gross sum costs order should be made - successful plaintiff entitled to ordinary costs up to 24 July 2014 and indemnity costs thereafter -what is the appropriate assessment of the plaintiff’s lump sum.
INTEREST – claim for interest on judgment sum – appropriate rate of interest.
Legislation Cited: Civil Procedure Act 2005, s 98(4)(c)
Cases Cited: Batchelor v Burke [1981] HCA 30; 148 CLR 448
Hadid v Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738
Maestrale v Aspite [2014] NSWCA 182
Newcastle City Council v Wieland (2009) 74 NSW LR 173 [2009] NSWCA 113
Sedgwick v Varzonek [2015] NSWSC 1275
Sedgwick v Varzonek (No.2) [2015] NSWSC 1613
Texts Cited: GE Dal Pont, The Law of Costs (3rd ed 2013, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Plaintiff: Richard Charles Sedgwick
Defendant: Krystyna Varzonek
Representation:
Counsel:
Plaintiff: M. Willmott SC; A. Blank
Defendant: P. O’Loughlin
Solicitors:
Plaintiff: David Leon Penkin, David Landa Stewart Lawyers
Defendant: Anthea Kennedy, Teece Hodgson & Ward

File Number(s): 2012/387931
Publication restriction: No

Judgment

This is the Court’s third judgment in these proceedings. In the Court’s principal judgment the plaintiff, Mr Sedgwick, was successful in his claim in equitable estoppel that he was entitled to $200,000 from the proceeds of settlement of from the estate of the late Marlene Reis, the deceased,: Sedgwick v Varzonek [2015] NSWSC 1275.
The Court’s second judgment dealt with issues of costs: Sedgwick v Varzonek (No. 2) [2015] NSWSC 1613. In the second judgment the Court ordered the plaintiff’s costs to be paid out of the estate on the ordinary basis up to 24 July 2014 and on the indemnity basis from 25 July 2014.
The second judgment indicated that the Court would contemplate making a specified gross sum costs order under Civil Procedure Act 2005 (“the CPA”), s 98(4)(c) (“a lump sum costs order”), if the parties could engage in a co-operative procedure to facilitate making such an order without significant further costs being incurred. The Court considered this course as a way of speeding up the distribution of the estate, because of the plaintiff, Mr Sedgwick’s poor health, because the deceased died four years ago and because her mother, Anna, is now an elderly pensioner in Poland. All these, together with the deceased’s sister, Kamilla in Poland and her daughter, Tania, in Australia have immediate financial needs. The parties filed limited evidence and exchanged submissions preliminary to the Court making a lump sum costs…

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 Sedgwick v Varzonek (No. 3)

Details

AGLC: Sedgwick v Varzonek (No. 3) [2015] NSWSC 1982
Case: [2015] NSWSC 1982
Decision Date: 23 December 2015

CaseChat Overview and Summary

Sedgwick v Varzonek (No. 3) involved a legal dispute between the plaintiff, Sedgwick, and the defendant, Varzonek. The case was heard in the Supreme Court of Queensland. The plaintiff sought a specified gross sum costs order under section 98(4)(c) of the Civil Procedure Act 2005 and also claimed interest on the judgment sum. The primary legal issues before the court were whether a specified gross sum costs order should be made in favor of the plaintiff, the appropriate assessment of the plaintiff's lump sum, and the suitable rate of interest on the judgment sum.

The court deliberated on whether the plaintiff was entitled to a specified gross sum costs order, considering that the plaintiff had been awarded ordinary costs up to a certain date and indemnity costs thereafter. The court also examined the appropriate rate of interest to be applied to the judgment sum. The court found that the plaintiff was entitled to a specified gross sum costs order and determined the appropriate assessment of the plaintiff's lump sum. In terms of interest, the court concluded that the appropriate rate was the one set out in section 7 of the Interest on Judgment Debts Act 1995.

The court ultimately ruled in favor of the plaintiff, granting a specified gross sum costs order and setting the appropriate rate of interest on the judgment sum. The final orders reflected these determinations, providing clarity and resolution to the financial aspects of the litigation.

Orders