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Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

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Case Copied 3 February 2011 28 min read

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Supreme Court

New South Wales

Case Title: Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd

Medium Neutral Citation: [2011] NSWSC 11

Hearing Date(s): 10 December 2010

Decision Date: 03 February 2011

Jurisdiction:

Before:
Barrett J

Decision:
Narui Gold Coast Pty Ltd's notice of motion filed on 25 November 2010 is dismissed with costs

Catchwords:
PROCEDURE - costs - plaintiffs ordered to pay defendant's costs - subsequent application by defendant for gross sum costs order - relevant considerations discussed - whether sufficient evidentiary basis for such order

Legislation Cited:
Civil Procedure Act 2005, ss 98(1)(a) and (b), 98(4)(c)
Evidence Act 1995, ss 50, 79
Legal Profession Act, Part 3.2, Division 11, s 364(1), (2)

Cases Cited:
Beach Petroleum NL v Johnson (1995) 57 FCR 119
Collins Thomson Pty Ltd v Clayton [2002] NSWSC 366
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Hadid V Lenfest Communications Inc [2000] FCA 628
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Idoport Pty Ltd v National Australia Bank Ltd [2005] NSWSC 1273
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 1106

Texts Cited:

Category: Consequential orders

Parties:
Tim Barr Pty Limited (First Plaintiff)
Timothy James Barr (Second Plaintiff)
Narui Gold Coast Pty Limited (Defendant)

Representation

- Counsel:
Counsel:
M J Dawson (First Plaintiff)
J E Lazarus (Second Plaintiff)
I M Neil SC/A C Harding (Defendant)

- Solicitors:
Solicitors:
Blackstone Waterhouse Lawyers (First Plaintiff)
J T Law Pty Limited (Second Plaintiff)
Verekers (Defendant)

File number(s): 2002/62056

Publication Restriction:

Judgment

The following order was made in these proceedings on 28 September 2010:
"The plaintiffs pay the defendant's costs of the proceedings, including the cross-claim."
The plaintiffs are, of course, Tim Barr Pty Ltd ("TBPL") as first plaintiff and Mr Barr as second plaintiff. The defendant is Project 28 Pty Ltd, formerly Narui Gold Coast Pty Ltd ("NGC").
It was also ordered on 28 September 2010 that the defendant's application under s 98(4)(c) of the Civil Procedure Act 2005 for a gross sum costs order be fixed for hearing on 10 December 2010. By notice of motion filed on 25 November 2010, and heard on 10 December 2010, NGC sought the following order:
"Pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiffs pay the defendant's costs of the proceedings, including the cross-claim, in the gross sum of $1,850,000 instead of assessed costs."
It is with this application that I am now concerned.
In the course of the hearing of the notice of motion, counsel for NGC made it clear that the application is, in reality, for an order in the sum of $1,850,000 or such smaller sum as the court should think fit. If the court decides that a gross sum costs order is appropriate but considers a sum less than $1,850,000 to be the proper sum, NGC's position is not that the court should decline to make an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 11
Decision Date: 03 February 2011

CaseChat Overview and Summary

The case before the court involved a dispute between Tim Barr Pty Ltd and Narui Gold Coast Pty Ltd. The plaintiffs, Tim Barr Pty Ltd, had commenced proceedings against the defendant, Narui Gold Coast Pty Ltd, and were ultimately ordered to pay the defendant's costs. Following this, the defendant applied for a gross sum costs order, which the plaintiffs opposed. The court was required to determine whether the defendant's application for a gross sum costs order was justified and whether there was a sufficient evidentiary basis for such an order.

The court considered the factors relevant to determining whether a gross sum costs order should be made. These factors included the nature of the proceedings, the amount of costs claimed, the complexity of the case, and the conduct of the parties. The court also examined whether the defendant's application was supported by an adequate evidentiary basis. The court noted that a gross sum costs order was not automatic and that the defendant needed to demonstrate that such an order was appropriate in the circumstances of the case. The court found that the defendant had not provided sufficient evidence to support the claim for a gross sum costs order.

As a result of the court's reasoning, the defendant's application for a gross sum costs order was dismissed. The court held that the defendant had not met the evidentiary threshold required to justify such an order. The court emphasised the importance of a proper evidentiary basis in supporting a claim for a gross sum costs order. The court also reiterated that each case must be assessed on its own merits, and that the factors relevant to determining the appropriate costs order must be carefully considered.

The final orders of the court were that the defendant's application for a gross sum costs order was dismissed, and the plaintiffs were not required to pay any additional costs beyond those already ordered. The court's decision underscored the need for a robust evidentiary basis when seeking a gross sum costs order and highlighted the importance of assessing each case on its individual circumstances.

Orders