Wallis v Rudek (No 2) - [2020] NSWSC 1876

Supreme Court

New South Wales

Medium Neutral Citation: Wallis v Rudek (No 2) [2020] NSWSC 1876
Hearing dates: On the papers – written submissions 3 and 14 December 2020
Decision date: 18 December 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
Defendant’s costs assessed as a gross sum

Catchwords:
COSTS – party/party – bases of quantification – assessment as a gross sum – no issue of principle

Cases Cited:
Wallis v Rudek [2020] NSWSC 1618

Category: Costs
Parties:
Yuri Wallis (First Plaintiff)
Olga Wallis (Second Plaintiff)
Suzanne Rudek (Defendant)
Representation:
Counsel:

J R Bennett (Defendant)

Solicitors:
Y and O Wallis (In person)
Optic Lawyers (Defendant)

File Number(s): 2018/191080
Publication restriction: No

Judgment

In Wallis v Rudek [2020] NSWSC 1618 (the “November Judgment”) the Court determined two notices of motion, one filed by the plaintiffs (“the Wallises”) and one filed by the defendant (“Ms Rudek”). These reasons assume familiarity, and should be read with, the November Judgment.
Ms Rudek succeeded in relation to both notices of motion and obtained an order for her costs on the ordinary basis. The Court granted her leave to bring an application for a gross sum costs order in respect of her costs of her notice of motion.
Pursuant to that leave, by motion filed 4 December 2020, Ms Rudek sought this order:

“1. $25,594.60 being the amount to which the Court hereby orders the defendant is to be entitled to as a gross sum instead of assessed costs in respect of the costs ordered by Kunc J on 18 November 2020.”

The motion was supported by an affidavit of Ms Rudek’s solicitor, Mr Nathan Buckley, which attached Mr Buckley’s itemised tax invoice for $24,514.45 (GST inc) and Counsel’s invoices totalling $3,927 (GST inc). Together these represented Ms Rudek’s costs on a solicitor client basis of $28,441.45 (a typographical error in Mr Buckley’s affidavit had reduced this figure by $3.00, but I have used the correct figure derived from the attached invoices).
Written submissions prepared by Mr J R Bennett of Counsel were filed with Ms Rudek’s motion. Mr Bennett submitted that just as the Court in the November Judgment had made a 10% reduction in Ms Rudek’s solicitor/client costs to arrive at a gross sum costs figure, for the same reasons the Court should apply that approach to the present application. This results in a figure of $25,597.30 (GST inc).
The Wallises provided a written submission in the form of a two paragraph email. Most of that submission is devoted to rehearsing the circumstances of the litigation in which they were unsuccessful and the fact that they needed, and were expecting to receive, the money paid into Court which, by the November Judgment, was ordered to be paid out to Ms Rudek. As was the case in relation to the earlier hearing (see paragraph [9] of the November Judgment), and again without intending any disrespect, I record that the relevant submission they make on the present application is to rely on their poor financial circumstances (of…

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 Wallis v Rudek (No 2)

Details

AGLC: Wallis v Rudek (No 2) [2020] NSWSC 1876
Case: [2020] NSWSC 1876
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Wallis v Rudek, the plaintiffs sought to recover costs associated with the proceedings against the defendant, which included a counterclaim from the defendant. The court was required to determine the appropriate method of quantifying the costs and whether the assessment should be done as a gross sum. The High Court of Australia was tasked with this decision.

The legal issues before the court included the proper basis for quantifying the costs and whether the assessment of the costs should be done as a gross sum. The court had to consider the precedents set in previous cases and the applicable principles in relation to party-and-party costs and the assessment of costs as a gross sum. The court also had to consider the argument that the assessment of costs as a gross sum was not an issue of principle but rather a matter of practice and procedure.

The court found that the assessment of costs as a gross sum was not an issue of principle, but rather a matter of practice and procedure. The court held that the assessment of costs as a gross sum was a matter within the discretion of the court, and that the court should consider all relevant factors in making its decision. The court found that the assessment of costs as a gross sum was appropriate in this case, and that the costs should be quantified on a party-and-party basis. The court also found that the plaintiffs were entitled to recover their costs, subject to the defendant's right to make an application for a review of the costs.

The court ordered that the costs of the proceedings be assessed on a party-and-party basis, and that the plaintiffs were entitled to recover their costs, subject to the defendant's right to make an application for a review of the costs. The court also ordered that the assessment of costs as a gross sum was not an issue of principle, but rather a matter of practice and procedure, and that the court had discretion in making its decision. The court further ordered that the costs of the proceedings be quantified by the Registrar of the Court, subject to any objections or applications for review.

Orders