Sutton and Lasko and Anor (No.4)

[2019] FCCA 3056

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTTON & LASKO & ANOR (No.4) [2019] FCCA 3056

Catchwords:
FAMILY LAW – Indemnity costs order – determination of quantum of costs.

Applicant: MR SUTTON

First Respondent: MS LASKO

Second Respondent: MS THOMPSON

File Number: MLC 9211 of 2017

Judgment of: Judge McNab

Hearing date: On the papers

Date of Last Submission: 17 October 2019

Delivered at: Melbourne

Delivered on: 25 October 2019

REPRESENTATION

The Applicant appearing in person

Solicitors for the First Respondent: Berger Kordos

Solicitors for the Second Respondent: PCL Lawyers

ORDERS

1. Pursuant to Order 7 of the Orders made in this matter on 16 September 2019, the Applicant pay the First Respondent’s costs of and incidental to the Amended Application in a Case filed 13 September 2019 and the hearing of 16 September 2019 on an indemnity basis fixed in the sum of $16,225.

IT IS NOTED that publication of this judgment under the pseudonym Sutton & Lasko & Anor (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9211 of 2017

MR SUTTON

Applicant

And

MS LASKO

First Respondent

MS THOMPSON

Second Respondent

REASONS FOR JUDGMENT

1. On 16 September 2019, the Court made orders that the Applicant pay the First Respondent’s costs on an indemnity basis. That order provided that, should the parties not agree as to the costs to be paid, the First Respondent was to provide a schedule of those costs to the Court by 4pm 26 September 2019 and the Applicant was to file any response by 4pm 3 October 2019. In such case where the parties could not agree – and in this case they have not agreed – the costs were to be determined by the Court on the papers.

2. By correspondence on 26 September 2019, the First Respondent sought payment in the sum of $23,455. This included solicitor fees of $18,200 and Counsel fees of $5,225. The Applicant did not make submissions despite the previous order allowing him to do so.

3. The Court subsequently wrote to the First Respondent’s solicitors asking for an explanation as to how their costs were calculated in order to determine whether the costs were reasonable. In response to that communication, the First Respondent’s solicitors wrote to the Court on 17 October 2019 advising that:

   Our firm does not charge on a time basis, rather by scoping our work according to outcomes. Accordingly, we do not record time spent on work performed. To assist His Honour, enclosed herewith is the relevant Scope of Work for $18,205 including GST, which sets out the relevant tasks completed during the period of the Scope. The Scope includes preparation and attendance at the Hearing of our client's Application in a Case including further incidental tasks that directly related to our client's Application. The Scope of Work fee also reflects the complexities of this case, noting the number of parties/interested parties involved.

4. The difficulty the Court faces in relation to the scope of works provided by the First Respondent’s solicitors is that the scope was fixed on 11 September 2019 in respect of the period from 24 August 2019 to 16 September 2019. The scope does not identify by what yardstick the fees are determined.

5. Furthermore, the scope was prepared in advance of the work being performed and it is not clear precisely how much work was performed and how long that work took to be performed. For instance, part of the scope includes ‘[a]ll conferences and correspondence with you during the Scope’. There is no indication or evidence before the Court as to the number of conferences and correspondences actually conducted.

6. Doing the best the Court can having regard to the scale of costs and an estimate of the time spent by the First Respondent’s solicitors on this matter, the Court makes an allowance of $11,000 for the First Respondent’s solicitor’s costs, including GST. The Court further accepts that the First Respondent has incurred $5,225 of Counsel fees.

7. Therefore, the Court will make orders that the applicant pay the First Respondent’s costs fixed in the sum of $16,225 (being $11,000 of solicitor fees and $5,225 of Counsel fees).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 25 October 2019