Soulis v R & a Henry Auto Repairs (No 4)

[2022] NSWSC 1383

Supreme Court

New South Wales

Medium Neutral Citation:

Soulis v R & A Henry Auto Repairs & Ors (No 4) [2022] NSWSC 1383

Hearing dates:

Written submissions

Date of orders:

13 October 2022

Decision date:

13 October 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), I order that the plaintiff pay the costs of the defendants in the gross sum of $13,200.00.

(2) I direct the Registrar to forward a copy of this judgment to the plaintiff.

Catchwords:

COSTS – Gross sum order – No point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Soulis v R & A Henry Auto Repairs & Ors (No. 3) [2022] NSWSC 1109

Quach v Horvath [2022] NSWSC 694

Category:

Costs

Parties:

Andrew Soulis – Plaintiff
R & A Henry Auto Repairs Pty Ltd – First Defendant
Mark Gary Henry t/as R & A Henry Auto Repairs Pty Ltd – Second Defendant
Brett Alan Henry t/as R & A Henry Auto Repairs Pty Ltd – Third Defendant

Representation:

Counsel:
Self-represented – Plaintiff
J Burke (solicitor) – First, Second and Third Defendants

Solicitors:
Self-represented – Plaintiff
J Burke Law – First, Second and Third Defendants

File Number(s):

2021/365912

Publication restriction:

Nil

Judgment

1. On 16 September 2022 I made orders dismissing these proceedings. [1] On that occasion I reserved the question of costs and gave the parties an opportunity to provide written submissions in relation to that issue. I have received submissions from the solicitor for the defendants.

   1. Soulis v R & A Henry Auto Repairs & Ors (No. 3) [2022] NSWSC 1109.

2. In circumstances where the plaintiff was unrepresented, I directed the Registrar to forward a copy of my judgment to him. No submissions have been received from the plaintiff but I proceed on the assumption that he is aware of the orders I previously made.

3. The defendants seek an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff be ordered to pay their costs in a gross sum of $13,200.00. In support of that position, the defendants rely upon the affidavit of Mark Henry of 20 July 2022.

4. That affidavit establishes that, as at the date on which it was sworn, the defendants’ costs were $13,200.00 (inclusive of GST). Since that time, there has been a hearing concluded over two separate hearing days, namely 17 August 2022, and 2 September 2022. The submissions of the solicitor for the defendants assert[2] that as of 17 August 2022, the defendants’ costs were $22,000.00 (inclusive of GST). Although there is no evidence in support of that assertion, as a matter of common sense the fact that the hearing proceeded over two days would have seen the defendants’ costs increase over and above what they were on 20 July 2022. Accordingly, I am satisfied that the gross sum which is sought represents a significantly discounted amount.

   2. At [4].

5. In circumstances where the defendants were successful in having the proceedings dismissed, there is no reason why costs should not follow the event. Bearing in mind the specific order for costs sought by the defendants, s 98 of the Civil Procedure Act 2005 (NSW) is in the following terms:

Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

(5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996 .

(6) In this section,

costs include--

(a) the costs of the administration of any estate or trust, and

(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and

(c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.

6. The present order is sought pursuant to s 98(4)(c). In Quach v Horvath [3] I addressed the principles governing the making of such an order:

   3. [2022] NSWSC 694 at [14].

14   The principles governing a gross sum costs order include the following:

(a)   such an order is of particular application in circumstances where it is desirable to avoid the expense, delay, aggravation or futility which may be involved in a costs assessment;

(b)   the assessment of any gross sum which might be awarded must be consistent with:

(i)   the pleadings;

(ii)   the complexity of the issues which are raised on    the pleadings;

(iii)   any interlocutory processes;

(iv)   the preparation for a final hearing; and

(v)   the final hearing itself;

(c)   in exercising the discretion to make an order for costs in a gross sum, I am not required to undertake a detailed examination of the kind which would be undertaken by a costs assessor. Apart from anything else, to do so would largely, if not entirely, defeat the purpose of such an order;

(d)   the exercise of the discretion in favour of making a gross sum costs order should only be exercised if I am satisfied that I can do so fairly between the parties. Arriving at that conclusion requires (inter alia) that, on the basis of the evidence available, I have sufficient confidence that the sum which is sought is appropriate. Such an approach may necessarily involve an impressionistic evaluation, and an equally impressionistic discount of the costs which have been actually incurred, in order to take into account the contingencies that would be taken into account by a costs assessor in a formal assessment;

(e)   the exercise of the discretion is intended to promote bringing consequential aspects of litigation to a more timely conclusion; and

(f)   the exercise of the discretion is particularly appropriate where any assessment is likely to be protracted and expensive.

7. Bearing in mind those principles, I am satisfied that the sum which has been sought by the defendants is appropriate. For the reasons I have given, it represents a significant discount having been applied to the actual costs which have been incurred.

8. Further, the exercise of the discretion to make the order sought is particularly appropriate where any assessment is likely to be protracted and expensive. These proceedings have themselves been protracted, as will be evident from the number of occasions on which they have been before me for directions. They have also been expensive, as will be evident from the costs incurred by the defendants. Given that history, there is every reason to think that, absent the order sought being made, the resolution of the question of costs would be similarly protracted, which would necessitate the defendants incurring further expense. That outcome should be avoided.

ORDER

9. For those reasons I make the following order:

1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), I order that the plaintiff pay the costs of the defendants in the gross sum of $13,200.00.

2. I direct the Registrar to forward a copy of this judgment to the plaintiff.

Endnotes