Spencer v Coshott (No 2)

[2021] NSWCA 266

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Spencer v Coshott (No 2) [2021] NSWCA 266

Hearing dates:

On the papers

Date of orders:

25 November 2021

Decision date:

25 November 2021

Before:

Bell P; Emmett AJA; Simpson AJA

Decision:

Pursuant to s 98(4) of the Civil Procedure Act 2005 the respondent (Ronald Coshott) pay to the applicant (Keith Spencer):

1. in relation to the statutory appeal to the District Court, costs in the gross sum of $23,392.78;

2. in relation to the judicial review proceedings in this Court, costs in the gross sum of $22,395.07;

3. relation to the application for gross sum costs, costs in the sum of $3,002.48.

Catchwords:

COSTS – gross sum costs – where administration of justice served by bringing litigation to an end

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(4)(c)

Legal Profession Uniform Law Application Act 2014 (NSW), s 89

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422

Spencer v Coshott [2021] NSWCA 235

Category:

Costs

Parties:

Keith Spencer (Applicant)
Ronald Coshott (Respondent)

Representation:

Counsel:
M Castle/A Bailey (Applicant)
J O’Sullivan (Respondent)

Solicitors:
Nexus Lawyers (Applicant)
D Iacono, & Legal (Respondent)

File Number(s):

2021/142329

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

19 February 2021

Before:

Curtis ADCJ

File Number(s):

2020/293294

Judgment

1. THE COURT: Judgment in this matter was given on 8 October 2021: Spencer v Coshott [2021] NSWCA 235 (“the principal judgment”). The Court reserved to the parties the opportunity to provide additional evidence and submissions in respect of costs by, in the case of Mr Spencer, 15 October 2021 and, in the case of Mr Coshott, 22 October 2021.

2. Within the specified time Mr Spencer provided an affidavit sworn by Marcus McCarthy on 15 October 2021, and written submissions. He provided a further affidavit sworn by Mr McCarthy on 18 October 2021. Mr Spencer seeks an order that Mr Coshott pay his costs of the proceeding in this Court, and the proceeding in the District Court, and a further order, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the costs payable be in a specified gross sum (instead of as assessed).

3. No evidence or submissions were received from Mr Coshott within the time allowed. During the afternoon of 3 November the Court received, by email, an outline of submissions. Mr Coshott did not dispute his liability to pay the costs to both proceedings, in each of which he was, by the orders made in respect of the principal judgment, unsuccessful. Two alternative propositions were advanced by Mr Coshott, the first being blanket opposition to a gross sum costs order. The alternative position was that, if such an order were to be made, the amount claimed by Mr Spencer should be significantly reduced (by 50%).

4. The history of the proceedings between these parties is set out in some detail in the…