Young & Young v Attorney General of New South Wales (No 2)

[2024] NSWSC 705

Supreme Court

New South Wales

Medium Neutral Citation:

Young & Young v Attorney General of New South Wales (No 2) [2024] NSWSC 705

Hearing dates:

On the papers

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Equity - Applications List

Before:

Kunc J

Decision:

Order in each proceeding that the defendant is entitled to be paid costs in the specified gross sum of $4,000.

Catchwords:

COSTS – Party/party – Specified gross sum – no issue of principle

Legislation Cited:

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

Cases Cited:

Young & Young v Attorney General of New South Wales [2024] NSWSC 282

Category:

Costs

Parties:

Proceedings 2023/292705
Kyle Anthony Young (Plaintiff)
Attorney General of New South Wales (Defendant)

Proceedings 2023/292696
Shaun Anthony Young (Plaintiff)
Attorney General of New South Wales (Defendant)

Representation:

Proceedings 2023/292705
Plaintiff (Self)

Solicitors:
Crown Solicitor (Defendant)

Proceedings 2023/292696
Plaintiff (Self)
Solicitors:
Crown Solicitor (Defendant)

File Number(s):

2023/292705
2023/292696

JUDGMENT

Summary

1. The Court delivered its principal judgment in these two proceedings on 20 March 2024, having dealt with the matter on the papers: Young & Young v Attorney General of New South Wales [2024] NSWSC 282. Defined terms in the judgment have the same meaning in these reasons, which assume familiarity, and should be read with, the judgment.

2. In the judgment, the Court dismissed with costs each of Shaun and Kyles’ summonses.

3. When the judgment was delivered, the Court gave liberty to the AG to apply in relation to any special costs order, including for costs to be assessed as a specified gross sum.

4. The AG exercised that liberty, and the Court made directions for the exchange of submissions and evidence on the basis that the costs application would also be dealt with on the papers.

5. In accordance with the Court’s directions, the AG filed submissions on costs together with a notice of motion that in each of their proceedings, Shaun and Kyle should each pay the AG’s costs of the proceedings assessed as a specified gross sum of $4,000 each. The AG’s motion was supported by an affidavit sworn by Ms I Viney, a solicitor in the office of the Crown Solicitor for NSW.

6. Despite being following up on at least two occasions by my Associate, Shaun and Kyle have refused to participate in this stage of the proceedings. They have declined to file any submissions or evidence in accordance with the Court’s directions. The only response which my chambers has received is an email sent by Kyle to my Associate:

“Come forth; and try collecting on that $4,000 debt!

Guess whom is the owners of all debt???

Kind regards”

7. For the reasons which follow, the Court will make orders in accordance with the AG’s application.

Consideration

8. Ms Viney’s affidavit attached the Standard Terms of Engagement used by the Crown Solicitor’s Office. The Court is satisfied that the hourly rates of the solicitors involved were reasonable.

9. Ms Viney then goes on to depose that she had reviewed the bills rendered in the two matters and had created a “schedule of costs” from the commencement of the proceedings until the conclusion of the hearing before me on 15 March 2024 (being the occasion on which the Court directed that the substantive proceedings be dealt with on the papers). Ms Viney’s affidavit discloses that in the course of her review of the fees that were charged, she excluded a number of billed entries (correctly, in my respectful opinion) being:

1. Internal conferences and internal emails that did not address substantive issues or evidence;

2. Preparation undertaken as a result of the solicitor with the carriage of the matter being unavailable;

3. The drawing or perusal of a handover memorandum between the solicitors with the carriage of the matter; and

4. Any legal work carried out after the hearing on 15 March 2024, such as reporting to the client or obtaining further instructions.

10. With those deductions, Ms Viney’s calculations yielded costs on a solicitor/client basis of $17,696.70. Having reviewed the schedule, I am satisfied that, with one reservation, those costs were reasonably incurred. The one reservation is a claim for 2.5 hours on 5 February 2024 for “preparation for directions hearing” which in the absence of further explanation I would have reduced to 1 hour. However, given the overall outcome, it is not necessary to seek a further explanation and the effect of my reservation is de minimis. This is because, in each matter, the AG seeks costs of $4,000, being a discount of 54.8% from the total solicitor/client costs incurred.

11. The Court accepts the AG’s submissions that this is a clear case for costs to be assessed as a specified gross sum in accordance with s 98(4)(c) of the Civil Procedure Act 2005 (NSW):

1. Costs assessment will add to the legal costs arising from the proceedings and delay their finalisation;

2. There is sufficient supporting information to give the Court confidence that an appropriate sum can be ordered;

3. The amount sought is not large and, given the attitude displayed by Shaun and Kyle to their further involvement in the proceeding, any costs assessment would simply result in further costs being incurred for no apparent benefit to anyone; and

4. The AG had fairly foreshadowed to Shaun and Kyle from the commencement of the proceedings that the proceedings were likely to be summarily dismissed with costs being awarded against them.

12. The Court finds that the proposed 54.8% reduction in solicitor/client costs is reasonable and appropriate in the circumstances referred to in the preceding paragraph. It exceeds both the usual deduction that the Court would make of approximately 30% to reflect the difference between solicitor/client and party/party costs, and the further discount the Court might consider making on an application of this kind to reflect the broad brush nature of this form of assessment.

Conclusion

13. There will, therefore, be an order in each proceeding that the AG is entitled to be paid costs in the specified gross sum of $4,000 instead of assessed costs.

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Decision last updated: 11 June 2024