Ventura v Higgins (No. 2)

Case [2018] NSWDC 78

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Ventura v Higgins (No. 2) [2018] NSWDC 78
Hearing dates: 23 March 2018
Date of orders: 23 March 2018
Decision date: 05 April 2018
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) The defendants are to pay the plaintiffs’ costs of the notice of motion filed on 15 February 2018 (including the application today and other proceedings before the District Court) on the ordinary basis, to be assessed forthwith pursuant to r 42.7 Uniform Civil Procedure Rules 2005 (NSW), such costs to proceed to assessment as opposed to being the subject of a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW).
(2) Note that the application by the plaintiffs to revoke Ashford DCJ’s order is refused.

Catchwords: COSTS – applications for costs in the District Court of New South Wales following transfer of the proceedings to the Supreme Court – application of the principles concerning costs following the event – whether an order for indemnity costs should be made – whether costs of the District Court should be payable forthwith – whether a solicitor acting for himself and a corporation of which he was a sole director was entitled to seek his legal costs under the Chorley principle – whether, if such costs were payable, the plaintiffs were entitled to a gross sum costs order – defendants ordered to pay plaintiffs’ costs but plaintiffs’ application for indemnity costs and a gross sum costs order refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101, 140 and 144
District Court Act 1973 (NSW), s 44
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.7
Cases Cited: Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009
Coshott v Spencer (2016) 22 DCLR (NSW) 115
Coshott v Spencer [2017] NSWCA 118
Coshott v Spencer [2017] HCATrans 263
Cretazzo v Lombardi (1975) 13 SASR 4
Croker v Commissioner of Taxation (2002) 124 FCR 286
Factortame v Secretary of State [2002] EWCA Civ 22
George v Fletcher (Trustee) (No 2) [2010] FCAFC 71
Ghosh v Miller (No 2) [2016] NSWSC 713
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Mahommed v Unicomb [2017] NSWCA 65
McMahon v John Fairfax Publications Pty Ltd (No 8) [2014] NSWSC 673
Optical Express Ltd and others v Associated Newspapers Ltd [2017] EWHC 2707 (QB)
Oshlack v Richmond River Council (1998) 193 CLR 72
Palladium Consulting Pty Ltd [2013] NSWSC 92
Poulos v Eberstaller (No 2) [2014] NSWSC 235
QRS v Legal Profession Board of Tasmania (No 2) [2017] TASFC 13
Re Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Smith v Trafford Housing Trust [2012]…

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AGLC
Ventura v Higgins (No. 2) [2018] NSWDC 78
Case
[2018] NSWDC 78
Decision Date

CaseChat Overview and Summary

In Ventura v Higgins (No. 2), the dispute involved the allocation of costs following the transfer of proceedings from the District Court of New South Wales to the Supreme Court. The plaintiffs, Ventura, sought indemnity costs and a gross sum costs order. The defendants, Higgins, opposed these applications and argued that the plaintiffs were not entitled to such costs. The central issue before the court was whether the plaintiffs were entitled to indemnity costs and a gross sum costs order under the relevant legal principles.

The court considered the principles governing costs in litigation, particularly in relation to indemnity costs and the Chorley principle. It examined whether a solicitor acting for himself and a corporation, of which he was a sole director, was entitled to seek his legal costs under this principle. The court also assessed whether, if such costs were payable, the plaintiffs were entitled to a gross sum costs order. The court found that the defendants were to pay the plaintiffs' costs on the ordinary basis, but declined to make an order for indemnity costs or a gross sum costs order.

The court's reasoning was grounded in the application of established legal principles and the specific circumstances of the case. It concluded that the plaintiffs were entitled to their costs, but not on the indemnity basis or in the form of a gross sum order. The court also refused the plaintiffs' application to revoke a previous order made by Ashford DCJ. The final orders mandated that the defendants pay the plaintiffs' costs of the proceedings, but these costs were to be assessed on the ordinary basis and not as indemnity costs or a gross sum order.

Orders

Orders of the court

(1) The defendants are to pay the plaintiffs’ costs of the notice of motion filed on 15 February 2018 (including the application today and other proceedings before the District Court) on the ordinary basis, to be assessed forthwith pursuant to r 42.7 Uniform Civil Procedure Rules 2005 (NSW), such costs to proceed to assessment as opposed to being the subject of a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW).

(2) Note that the application by the plaintiffs to revoke Ashford DCJ’s order is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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