WALKER v SELL (No.2)

[2016] FCCA 654

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALKER v SELL (No.2) [2016] FCCA 654

Catchwords:
COSTS – Whether costs should be awarded above the scale amount – whether costs were reasonably incurred – costs awarded.

Applicant: LYLE WALKER

Respondent: GLEN SELL

File Number: SYG 3328 of 2014

Judgment of: Judge Street

Hearing date: 3 March 2016

Date of Last Submission: 14 March 2016

Delivered at: Sydney

Delivered on: 7 April 2016

REPRESENTATION

Counsel for the Applicant: Mr A Spencer

Solicitors for the Applicant: Holman Webb Lawyers

Solicitors for the Respondent: Mr S Chandrasegaran
Albury Legal

ORDERS

1. The applicant to pay the respondent’s costs fixed in the sum of $14,162.17.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3328 of 2014

LYLE WALKER

Applicant

And

GLEN SELL

Respondent

REASONS FOR JUDGMENT

1. In these proceedings the Court dismissed the substantive application on 3 March 2016, and made directions for the filing of evidence and submissions for the determination of costs on the papers.  An affidavit has been filed by the solicitor for the respondent, identifying total costs and disbursements claimed of $39,386.60. 

2. The submissions filed on behalf of the applicant take issue with both the items and the scale that has been applied, which the applicant contends would amount to $14,162.17, and contends after allowance for a different amount in respect of the mediation that was attended by the parties, and an assertion that the claim advanced for preparation was only $660, as opposed to the amount in item 6 of Schedule 1 that the total amount claimable should be $7105.

3. The submissions of the applicant also identify assertions that the amount claimed are not proportionate, or reasonably incurred, or reasonable in amount, and made reference to the absence of invoices.  The Court’s direction was for a short form affidavit, not a full bill of costs, and I give no weight to the criticism as to the want of invoices and supporting material. 

4. I find the sum identified by the applicant, in terms of the items that might be allowed, totalling $14,162.17, to reflect reasonable and proportionate costs given the nature of the matter in the present case.  I do not accept that the amounts claimed should be reduced, as suggested in paras.7(a) and 7(b). 

5. Taking into account the material before the Court, as well as the Court’s general discretion and the ability of the Court to order items in excess of Schedule 1, I am satisfied that the respondent has incurred party-party costs and disbursements in the sum of $14,162.17.  There was no suggestion that costs should not follow the event.  Accordingly, the Court orders the applicant to pay the respondent’s costs, fixed in the sum of $14,162.17.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 April 2016