Vumbaca v Sultana (No. 2) - [2013] NSWDC 195

District Court

New South Wales

Medium Neutral Citation: Vumbaca v Sultana (No. 2) [2013] NSWDC 195
Hearing dates: 17 September 2013
Decision date: 23 September 2013
Before: Gibson DCJ
Decision:
(1) Pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW) an order that the plaintiff pay the defendant's costs for a gross sum of $37,217.73 ($53,168.19 x 70%).

Catchwords: COSTS - application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) - defendant seeks gross sum costs order following plaintiff's unsuccessful appeal from Costs Review Panel - whether appropriate to make a gross sum costs order in the circumstances - quantification of the appropriate specific gross sum to be awarded
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 98(4)
Cases Cited: Australasian Performing Rights Association Limited v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (1995) 57 FCR 119
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd (Federal Court of Australia, O'Loughlin J, 23 January 1998)
Cooper v Mulcahy; Mulcahy v Cooper (No 2) [2013] NSWCA 216
Cretazzo v Lombardi (1975) 13 SASR 4
CSR v Eddy (2005) 226 CLR 1
Datadot Technology Ltd v Alfa Microtech Pty Ltd [2003] FCA 1449
Harrison v Schipp [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2005] NSWSC 1273
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the matter of Palladium Consulting Pty Ltd [2013] NSWSC 92
Lambert v Jackson [2011] FAMCA 275
Lorenzato v Lorenzato (No 2) [2011] NSWSC 790
Nine Films and Television Pty Ltd v Nanox Television Ltd [2006] FCA 1046
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36
Seven Network Limited v News Limited [2007] FCA 2059
Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228
Sparnon v Apand Pty Ltd (Federal Court of Australia, 4 March 1998)
Starr-Diamond v Diamond (No 4) [2013] NSWSC 811
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Wentworth v Wentworth (Court of Appeal, New South Wales, 21 February 1996, unreported)
Williams Advanced Materials Incorporated v Target Technology Co LLC [2004] FCA 1405
Texts Cited: Dal Pont, Law of Costs, 2nd edition, 2009
Category: Costs
Parties: Plaintiff: Aldo Vumbaca
Defendant: Antoinette Sultana
Representation: Plaintiff: Mr S Russo (solicitor)
Defendant: Ms M Castle
Plaintiff: Russo & Partners
Defendant: Turner Freeman Lawyers

File Number(s): 2012/218606
Publication restriction: None

Judgment

The application before the court

On 14 December 2012 I handed down judgment for the defendant in proceedings brought by summons filed on 25 October 2012, in which the plaintiff appealed from a decision of the costs review panel of 23 May 2012 affirming the certificate of determination of a costs assessor for costs in the sum of $17,112.81.

I made an order that the plaintiff pay the defendant's costs. The defendant has brought an application for a gross sum costs order pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW).

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: [2013] NSWDC 195
Decision Date: 23 September 2013

CaseChat Overview and Summary

The case of Vumbaca v Sultana (No. 2) involved a plaintiff who sought a gross sum costs order from the defendant after an unsuccessful appeal from the Costs Review Panel. The defendant had already been ordered to pay the plaintiff's costs of the appeal, and now sought an order for the plaintiff to pay a gross sum of costs for the proceedings. The application was brought pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW). The court was required to decide whether it was appropriate to make a gross sum costs order in the circumstances, and if so, what the appropriate amount should be.

The court considered the factors relevant to the award of costs, including the conduct of the parties, the nature and complexity of the proceedings, and the outcome of the appeal. The court noted that the plaintiff's appeal had been unsuccessful, and that the defendant had been ordered to pay the plaintiff's costs of the appeal. The court also considered the fact that the plaintiff had not succeeded in obtaining a significant reduction in the amount of costs ordered against them. The court held that it was appropriate to make a gross sum costs order, and that the appropriate amount was 70% of the defendant's costs, which amounted to $37,217.73.

The court's reasoning was based on the fact that the plaintiff's appeal had been unsuccessful, and that the defendant had been ordered to pay the plaintiff's costs of the appeal. The court also considered the conduct of the parties throughout the proceedings, and the outcome of the appeal. The court held that the plaintiff's appeal had been vexatious, and that the plaintiff had not succeeded in obtaining a significant reduction in the amount of costs ordered against them. The court therefore ordered that the plaintiff pay the defendant's costs for a gross sum of $37,217.73. This represented 70% of the defendant's costs, which amounted to $53,168.19.

Orders

Orders of the court

(1) Pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW) an order that the plaintiff pay the defendant's costs for a gross sum of $37,217.73 ($53,168.19 x 70%).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Vumbaca v Sultana (No. 2) [2013] NSWDC 195
Hearing dates:	17 September 2013
Decision date:	23 September 2013
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 98(4)(c) Civil Procedure Act 2005 (NSW) an order that the plaintiff pay the defendant's costs for a gross sum of $37,217.73 ($53,168.19 x 70%).
Catchwords:	COSTS - application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) - defendant seeks gross sum costs order following plaintiff's unsuccessful appeal from Costs Review Panel - whether appropriate to make a gross sum costs order in the circumstances - quantification of the appropriate specific gross sum to be awarded
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 and 98(4)
Cases Cited:	Australasian Performing Rights Association Limited v Marlin [1999] FCA 1006 Beach Petroleum NL v Johnson (1995) 57 FCR 119 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd (Federal Court of Australia, O'Loughlin J, 23 January 1998) Cooper v Mulcahy; Mulcahy v Cooper (No 2) [2013] NSWCA 216 Cretazzo v Lombardi (1975) 13 SASR 4 CSR v Eddy (2005) 226 CLR 1 Datadot Technology Ltd v Alfa Microtech Pty Ltd [2003] FCA 1449 Harrison v Schipp [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2005] NSWSC 1273 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 In the matter of Palladium Consulting Pty Ltd [2013] NSWSC 92 Lambert v Jackson [2011] FAMCA 275 Lorenzato v Lorenzato (No 2) [2011] NSWSC 790 Nine Films and Television Pty Ltd v Nanox Television Ltd [2006] FCA 1046 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 Seven Network Limited v News Limited [2007] FCA 2059 Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 Sparnon v Apand Pty Ltd (Federal Court of Australia, 4 March 1998) Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Wentworth v Wentworth (Court of Appeal, New South Wales, 21 February 1996, unreported) Williams Advanced Materials Incorporated v Target Technology Co LLC [2004] FCA 1405
Texts Cited:	Dal Pont, Law of Costs, 2nd edition, 2009
Category:	Costs
Parties:	Plaintiff: Aldo Vumbaca Defendant: Antoinette Sultana
Representation:	Plaintiff: Mr S Russo (solicitor) Defendant: Ms M Castle Plaintiff: Russo & Partners Defendant: Turner Freeman Lawyers
File Number(s):	2012/218606
Publication restriction:	None