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

1. 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.

2. 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.

3. 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.”

4. 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).

5. 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).

6. 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 which there is, strictly speaking, no evidence). Their submissions conclude:

“…we feel we are being cheated by the amount their solicitor is claiming. Please have compassion that we lost everything and our situation is very dire and difficult, especially financially as we are pensioners. We kindly ask for a largest percentage discount as possible, rather than 10%, considering our situation. Thank you for your consideration.”

7. While the Court has every sympathy for the situation in which the Wallises find themselves, their financial predicament is not, in my respectful view, a relevant matter for the Court’s determination of the application for a gross sum costs order. The present application is on all fours with the application for gross costs which the Court determined in paragraphs [26] to [35] of the November Judgment. As was found to be the case in that application (see paragraph [28] of the November Judgment), in preparing and attending to the notice of motion that was determined by the November Judgment Mr Buckley did not charge Ms Rudek for a number of items of work that would otherwise have been chargeable. I have reviewed the invoice attached to Mr Buckley’s affidavit and, insofar as he has charged Ms Rudek, I am satisfied that those costs are reasonable and appropriate.

8. I therefore accept Mr Bennett’s submission that I should follow the same approach as I did in the November Judgment to determine the present application. For the same reasons as appear in the November Judgment I am satisfied that this is an appropriate case for a gross sum costs order to be made. As I was on the last occasion, and for the same reasons, I am satisfied that a rationally justifiable and just figure for costs can be arrived at by reference to the material presented in Mr Buckley’s affidavit and by discounting the solicitor/client costs by 10%. Given the reasonableness of Mr Buckley’s charges overall, when combined with the fact that there were attendances and disbursements for which he did not charge Ms Rudek, in this case the discount of 10% is sufficient to account for both a reduction of the kind generally applied in determining gross sum costs and the reduction from a solicitor/client costs figure to costs on the ordinary basis.

9. Finally, I record that Mr Buckley’s costs include (appropriately) the costs of the present application and those costs are included in the figure which the Court now assesses.

10. The Court’s final order is:

1. Order that the defendant is entitled to $25,597.30 as a gross sum instead of assessed costs in respect of the costs ordered by Kunc J on 18 November 2020 and in relation to the defendant’s costs of her motion filed 4 December 2020.

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Decision last updated: 18 December 2020