Turvey v Crotti (No 3) - [2020] NSWSC 346

Supreme Court

New South Wales

Medium Neutral Citation: Turvey v Crotti (No 3) [2020] NSWSC 346
Hearing dates: 4 March 2020
Date of orders: 08 April 2020
Decision date: 08 April 2020
Jurisdiction: Equity
Before: Emmett AJA
Decision:
Order that the defendant pay the plaintiff’s costs of the proceedings in the gross sum of $300,500 and that there be no further order as to the costs of the motion.

Catchwords: COSTS — Costs assessment — Determination — Power to disallow certain costs — Whether legal costs claimed are fair and reasonable — Entitlement to a specified gross sum instead of assessed costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 98(4)(c)
Conveyancing Act 1919 (NSW), s 88K
Evidence Act 1995 (NSW), s 79
Legal Profession Uniform Law (NSW), ss 76, 172
Legal Profession Uniform Law Application Act 2014 (NSW)
Cases Cited: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284
Category: Costs
Parties: Marjory Nola Turvey (Plaintiff)
Kayleen Sybil Crotti (Defendant)
Representation:
Counsel:
M Galvin (Defendant)
Solicitors:
Owen Hodge Lawyers (Plaintiff)
Dentons Australia Pty Ltd (Defendant)

File Number(s): 2016/314439

Judgment

On 18 December 2018, I published my reasons (the Liability Reasons) for concluding that the plaintiff, Ms Marjory Turvey, was entitled to damages for nuisance from the defendant, Ms Kayleen Crotti. [1] On 16 April 2019, I published my reasons (the Costs Reasons) for ordering that Ms Crotti pay Ms Turvey’s costs of the proceedings. [2] However, in the Costs Reasons, I reserved liberty to Ms Crotti to apply in the event that, after a bill of costs had been prepared, she wished to pursue a contention that the costs claimed on behalf of Ms Turvey were excessive or incurred unreasonably. [3] I indicated that that may ultimately be a matter for a taxing officer and that liberty should be invoked only if there is an issue of principle in the taxing of a bill of costs produced on behalf of Ms Turvey.
1. [2018] NSWSC 1959 (“Liability Reasons”).
2. [2019] NSWSC 399 (“Costs Reasons”).
3. Costs Reasons at [47].
On 5 September 2019, Ms Turvey’s solicitors provided to Ms Crotti’s solicitors an assessment of costs (the Assessment) claiming a total amount of $428,551.33, including the sum of $11,000 for preparing the Assessment. On 25 October 2019, Ms Crotti applied, by notice of motion, for an order that she pay Ms Turvey’s costs of the proceedings as a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act). In the alternative, Ms Crotti sought an order that she pay Ms Turvey’s costs as a specified proportion of Ms Turvey’s assessed costs pursuant to s 98(4)(b) of the Civil Procedure Act. As a second alternative, she sought an order that she pay Ms Turvey’s costs as determined by the Court pursuant to s 60 of the Civil Procedure Act.
Under s 98 of the Civil…

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.

Continue reading Turvey v Crotti (No 3)

Details

AGLC: Turvey v Crotti (No 3) [2020] NSWSC 346
Case: [2020] NSWSC 346
Decision Date: 08 April 2020

CaseChat Overview and Summary

In the matter of Turvey v Crotti (No 3), the respondent sought to have the appellant’s costs assessed. The matter involved a dispute between two parties, Turvey and Crotti, with the respondent, Crotti, seeking a review of the costs incurred by Turvey during the litigation process. The High Court of Australia was tasked with determining the appropriate method for assessing the legal costs in this case.

The legal issues before the court centred on the assessment of costs in litigation and whether the costs claimed by Turvey were fair and reasonable. Specifically, the court had to decide whether the costs claimed by Turvey were in line with the principles of fairness and reasonableness, as well as whether the respondent was entitled to a specified gross sum instead of the assessed costs. The court was also required to consider the power of the court to disallow certain costs and the criteria for determining the reasonableness of legal costs.

The court examined the principles of costs assessment in litigation, noting that the overarching objective is to ensure that the costs awarded reflect the fair and reasonable expenses incurred by the successful party. The court held that the costs claimed by Turvey were not fair and reasonable, given the nature of the dispute and the conduct of the litigation. The court found that the respondent was entitled to a specified gross sum instead of the assessed costs, based on the principles of fairness and reasonableness. The court also exercised its power to disallow certain costs that were deemed excessive or unreasonable. Ultimately, the court ordered that the respondent be awarded a specified gross sum for the costs of the litigation, reflecting a fair and reasonable assessment of the expenses incurred.

Orders