Tanilba Beach Pty Limited v Jr and JB Pty Limited (No 2)

[2018] NSWSC 1250

Supreme Court

New South Wales

Medium Neutral Citation:

Tanilba Beach Pty Limited v JR & JB Pty Limited (No 2) [2018] NSWSC 1250

Hearing dates:

6 August 2018

Date of orders:

06 August 2018

Decision date:

06 August 2018

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) I decline to issue the writ of execution or a writ of possession.

 

(2) The notice of motion filed 20 December 2018 is dismissed.

 (3) The second defendant is to pay the plaintiff’s costs of today otherwise there is no order as to costs as to the notice of motion.

Catchwords:

No point of principle – outstanding costs orders – whether writ of possession or writ of execution should issue

Category:

Procedural and other rulings

Parties:

Reavill Farm Pty Ltd, Champions Quarry Pty Limited, Macabil Pty Limited, Jeffrey Francis Champion and Diana Christine Champion (Applicants)
John Llewellyn Burrell (Second Defendant)

Representation:

Counsel:
M Jaireth (Applicants)
L T Livingston (Second Defendant)

 

Solicitors:

  Resolve Litigation Lawyers (Applicants)
Burrell Solicitors (Second Defendant)

File Number(s):

2012/195040

Publication restriction:

Nil

EX TEMPORE Judgment (revised)

1. HER HONOUR: By notice of motion filed 20 December 2016, the Champion Interests sought an order that they be granted leave to issue a writ for the levy of property or a writ of execution against the judgment debtor.

2. On 9 March 2018, I delivered judgment in Tanilba Beach Pty Limited v JR & JB Pty Limited [2018] NSWSC 288 (“Tanilba Beach”). There has been a protracted history of litigation which is not in dispute. In Tanilba Beach at [26] to [28], I set out the history and the position of the parties. The amount of the assigned judgment debt claimed by the Champion Interests, including interest and costs up to 13 December 2016 and payable by Mr Burrell, is for the sum of $691,272.32. (at [26]). The net amount payable by the Champion Interests to Mr Burrell in the primary and Court of Appeal proceedings is $680,000 plus $253,610, totalling $933,610. The net amount payable by Mr Burrell to the Champion Interests is $876,272.32. (at [27]). If the amounts owing by each party are set off, it is estimated that Mr Burrell will come out out ahead in the sum of $57,337.68, albeit it will probably turn out somewhat less once his bills of costs have been assessed. (at [28]). I ordered Mr Burrell or BS Legal to serve a bill of costs (“bill of costs”) comprising of the solicitor’s costs and disbursements incurred in the primary proceedings on the Champion Interests by 1 June 2018. The notice of motion was stood over to 12 June 2018 before me for mention.

3. On 12 June 2018, this bill of costs had still not been prepared. I extended the time for serving the bill of costs to 5:00 pm on 27 July 2018. I made an order that save for exceptional circumstances; a writ of execution was to be issued on 27 July 2018, and listed to the matter before me today for directions.

4. Part of the claim that Champion Interests say is owed by Mr Burrell relates to proceedings numbered 2013/386077 in the sum of $119,985. However, this is an estimate only as no bill of costs had been prepared as at 9 March 2018 and one has not been prepared to date. My understanding is that a costs consultant is currently preparing a bill of costs that will be served on Mr Burrell. In other words, some months have passed without the Champion Interests taking steps to prepare a bill of costs.

Reasons for delay in preparing the bill of costs

5. Mr Burrell’s practice with most client litigation matters is to keep a contemporaneous record of the work being undertaken. He details entries made progressively in time-cost spread sheets which are used to create the solicitor/client bill that is given to the Court. If the costs are awarded in favour of the client in the matter, the data is then rolled over and used in the creation of the party/party bill. However, recording of data in a spreadsheet like this did not occur in the primary proceedings essentially because he was acting for himself. As there was no need for client bills, it was seen as an unnecessary use of resources at the time. (Aff, 3 August 2018, [10]).

6. Mr Burrell says that the preparation of the party/party bill of costs was a large scale exercise because all of the primary data had to be entered from scratch item by item. This involved cross referencing documents and records from over a five year span between 2011 to 2016, including the correspondence running file, email records on the computer, court documents (often involving multiple drafts that go through various iterations before being finalised), cheque printing and disbursements records. He says that the enormity of the task can be gauged by the sheer volume of documents involved contained in the order of 30 storage boxes. (Aff, 3 August 2018, [9]).

7. Mr Burrell estimates the total hours involved was in the order of over 100 hours, which was mostly his personal time because of his personal knowledge of the matter. He was only able to work on preparing the bill between other jobs and on weekends. (Aff, 3 August 2018, [10]).

8. Regarding order (3) made on 12 June 2018, that save for exceptional circumstances, a writ of execution will be issued on 27 July 2018, I accept that the bill of costs was not served on 27 July 2018 in accordance with my orders. It was served seven days later on 3 August 2018. Counsel for the Champion Interests says that this does not amount to exceptional circumstances and a writ should be issued. However, my paramount duty is to do justice to the parties.

9. It now turns out that Mr Burrell says the Champion Interests owe him roughly $791,000 and he owes the Champion Interests $876,272.32. Once the assessment of costs for both parties has taken place, it will result in a much smaller debt being owed by one party to the other. In these circumstances, it would be an injustice if I issued a writ of execution or a writ of possession whereby Mr Burrell had to pay the whole amount owed to the Champion Interests when he is basically owed almost as much after there is a set off. In these circumstances, I decline to issue the writ of execution or a writ of possession.

Costs

10. I make an order that the second defendant is to pay the Champion Interests’ costs of today. Otherwise I make no order as to costs of the notice of motion filed 20 December 2018, which I think is a fair result. I make an order that the notice of motion filed 20 December 2016 is dismissed.

The Court orders that:

(1)   I decline to issue the writ of execution or a writ of possession.

(2)   The notice of motion filed 20 December 2018 is dismissed.

(3)   The second defendant is to pay the plaintiff’s costs of today otherwise there is no order as to costs as to the notice of motion.

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Decision last updated: 10 August 2018