Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule a to this Statement of Claim trading as at all material times as Sparke Helmore (No 2)

[2021] NSWSC 1126

Supreme Court

New South Wales

Medium Neutral Citation:

Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times as Sparke Helmore (No 2) [2021] NSWSC 1126

Hearing dates:

On the papers

Decision date:

06 September 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Order that the costs which the plaintiff was ordered to pay on 12 August 2021 be fixed in the gross sum of $25,000.

(2)   Order that the amount of $25,000 is to be paid to the defendants from the monies paid into Court by the plaintiff as security for the defendants’ costs of the proceedings.

Catchwords:

COSTS — Party/Party — Application for a gross sum costs order — Principles for fixing costs in a gross sum — Order made with reduction

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Cases Cited:

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Hamod v State of New South Wales [2011] NSWCA 375

Category:

Costs

Parties:

Shoal Bay Beach Constructions No. 1 Pty Ltd (Plaintiff)
Mark Hickey and the persons listed in Schedule A to this Statement of Claim t/as at all material times as Sparke Helmore (Defendant)

Representation:

Counsel:
D Weinberger (Plaintiff)
A Zahra SC / J Burnett (Defendant)

Solicitors:
William Roberts Lawyers (Plaintiff)
YPOL Lawyers (Defendant)

File Number(s):

2019/204638

Judgment

Introduction

1. On 12 August 2021, I ordered that Shoal Bay Beach Constructions No. 1 Pty Ltd (the plaintiff) pay Sparke Helmore’s (the defendants’) costs of and incidental to their notice of motion filed on 3 June 2021, including of the hearing on 19 July 2021. The defendants sought an order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), that these costs be fixed in the gross sum of $28,309.23.

2. Mr Weinberger, who appears for the plaintiff, informed me that the plaintiff did not wish to respond to the evidence or submissions of the defendants on the question of the amount of the gross sum or the appropriateness of the order. He confirmed that the plaintiff did not require reasons to be given for making such an order or for fixing a sum. In light of that concession, I propose only to give a brief form of reasons for my order.

The basis for the application

3. The unchallenged evidence of Timothy Price, the principal solicitor for the defendants, sets out the basis for the defendants’ claim. I accept that he is an experienced solicitor and that the fees charged by the defendants’ legal representatives in this matter are, subject to one matter, which is referred to below, reasonable.

4. The amounts claimed, after discount are as follows:

Category	Amount (following application of discount)	% by which starting figure discounted
Professional fees	$6,481.22-$8,475.44	65-85%
Counsel’s fees	$20,427.50	Nil
Disbursements	$1,400.51	Nil
TOTAL	$28,309.23-$30,303.45

Consideration

5. The principles for fixing costs in a gross sum are well established: see Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21] (Giles JA) and Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA, Giles and Whealy JJA agreeing). In summary, the Court makes such orders to avoid the costs of assessment in cases where a broad-brush approach is appropriate, as I am satisfied it is in the present case. Because the approach is approximate, it is appropriate that there be discount of the costs which are claimed to take account of the lack of rigour in the process.

6. The only reservation I have about the total sum is that I note that much of the work on the motion was done by Mr Zahra SC. While his expertise and efficiency are to be commended, his rates (albeit reasonable in themselves) are understandably in excess of those charged by junior counsel. I am not satisfied that at least some of the work performed by Mr Zahra could not have been performed more cheaply by junior counsel. In these circumstances, I propose to apply a further discount to bring the total figure to the round figure of $25,000. The ordering of a round figure is also consistent with the broad-brush nature of the process.

Orders

7. For the reasons given above, I make the following orders:

1. Order that the costs which the plaintiff was ordered to pay on 12 August 2021 be fixed in the gross sum of $25,000.

2. Order that the amount of $25,000 is to be paid to the defendants from the monies paid into Court by the plaintiff as security for the defendants’ costs of the proceedings.

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