Woolf v Brandt (No 2)

[2023] NSWCA 309

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Woolf v Brandt (No 2) [2023] NSWCA 309

Hearing dates:

On the papers

Date of orders:

15 December 2023

Decision date:

15 December 2023

Before:

Kirk JA; Adamson JA

Decision:

The costs of the respondent are assessed, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), in the gross sum of $11,500.00 (which amount includes the costs of applying for this gross sum costs order)

Catchwords:

COSTS — Costs assessment — Whether gross sum costs order should be made — Whether costs should be awarded on an indemnity basis

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(4)

Cases Cited:

Gabrielle v Abood (No 4) [2023] NSWCA 100

Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72

Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368

Category:

Costs

Parties:

Richard Woolf (Applicant)
Nicholas Brandt (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
T Smartt (Respondent)

Solicitors:
Not applicable (Applicant)
Youth Law Australia (Respondent)

File Number(s):

2023/214839

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Woolf v Brandt (No 2) [2023] NSWDC 184

Date of Decision:

7 June 2023

Before:

Gibson DCJ

File Number(s):

2022/135926

JUDGMENT

1. THE COURT: In this proceeding the Court dismissed an application for leave to appeal from a decision of the District Court summarily dismissing the applicant’s claim as an abuse of process: Woolf v Brandt [2023] NSWCA 290.

2. The Court indicated at the conclusion of the hearing of the leave application that the application was dismissed with costs. The respondent then indicated that he wished to apply for his costs to be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). The Court made timetabling orders which required that the respondent file his submissions and evidence by 4 December 2023, that the applicant file and serve any submissions and evidence in response by 12 December 2023, with the respondent having leave to reply by 14 December 2023. The Court indicated that the application would be determined on the papers.

3. The respondent duly filed brief submissions on 4 December 2023. As regards evidence, he relied upon copies of an invoice to the respondent from each of his solicitor and barrister relating to costs of the proceedings in this Court, along with two open letters offering to settle the proceedings in the Court below.

4. The applicant has not filed any submissions or evidence in response to the respondent’s application. An email was sent to him by the associate of the presiding judge on the morning of 13 December 2023, asking him to confirm that he do not intend to file such materials and, if he did, to provide that material by no later than 1pm on that day. No response was received.

5. Three issues are raised by the respondent’s application:

1. Should costs be awarded on an indemnity basis?

2. Should the Court undertake a gross sum assessment?

3. If so, what amount of costs should be determined?

6. As for the indemnity cost application, the respondent submits that an award of indemnity costs is warranted for three reasons. First, he submits that the application for leave to appeal was itself a continuation of the abuse of process. Although we concluded the application for leave to appeal should be dismissed, that does not of itself establish that the application to this Court was an abuse of process. We do not consider that it was unreasonable, in the sense relevant to such applications for indemnity costs, for the applicant to seek to challenge the summary dismissal of his claim.

7. The respondent’s second reason is that the applicant drove up costs in the proceedings by inundating the Court with an amended notice of appeal and a number of different written submissions. Whilst there is some force in this complaint, we do not consider it rises to a level to warrant an indemnity costs order. The respondent dealt readily with the further material supplied by the applicant.

8. The third reason given is that the respondent’s solicitor wrote to the applicant’s then solicitor making open offers that the District Court proceedings be dismissed with no order as to costs, and with a costs order in the respondent’s favour being vacated (where the relevant costs were said to amount to “approximately $8853”). Those letters were sent on 10 and 11 May 2023, prior to the decision of the District Court which was the subject of the application to this Court. There is no evidence that any such offer was repeated in relation to the application to this Court. Although an offer relating to proceedings in the Court below might have some relevance to the exercise of this Court’s discretion as to costs, “[g]enerally, if an offer is not renewed (either in the same or different terms) prior to the appeal, the Court will not make a special costs order in respect of the appeal”: Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72. That reflects the fact that “[t]he proceedings in this court are distinct proceedings”: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [39]. The letters of offer here do not suffice as a basis for awarding indemnity costs in this Court.

9. In sum, none of the respondent’s reasons for seeking indemnity costs, alone or together, are sufficient to warrant such an order.

10. As for whether the Court should undertake a gross sum assessment of costs, this Court summarised relevant principles recently in Gabrielle v Abood (No 4) [2023] NSWCA 100:

[6] The power to make a gross sum costs order provided by s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is discretionary. Authority establishes that the discretion is not confined and may be exercised whenever the circumstances warrant its exercise; it should only be exercised when the Court considers that it can do so fairly between the parties, and that includes having sufficient confidence in arriving at an appropriate sum on the materials available; courts have typically applied a discount in assessing costs on a gross sum basis; and the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: see Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] and authority there cited.

11. Here, as submitted by the respondent, it is appropriate to make such an order. The costs claimed are modest. They can readily and fairly be assessed by reference to two invoices. And undertaking this exercise will reduce the need for the parties to continue to have to deal with each other, in circumstances where the Court below found that the proceedings below were abusive because the applicant had an ulterior purpose of seeking to continue contact with the respondent and maintain pressure on him as part of a recriminatory process following the break-up of their relationship.

12. The costs claimed in the invoices from the solicitor and the barrister appear reasonable in relation to rates, tasks undertaken and the time spent on those tasks. The invoices encompass the costs of this application, on which the respondent has succeeded in part. The respondent submitted that if costs were to be awarded on an ordinary basis then it would be appropriate to apply a discount of 25% to the actual costs incurred. Applying that discount, the amount claimed is $11,768.64. We would round that amount down to $11,500.00, reflecting the fact that this is a broad brush assessment, and taking account of the fact that the respondent did not succeed on that part of this application seeking indemnity costs.

13. The order of the Court will thus be as follows:

The costs of the respondent are assessed, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), in the gross sum of $11,500.00 (which amount includes the costs of applying for this gross sum costs order).

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Decision last updated: 15 December 2023