Soulis v R & A Henry Auto Repairs & Ors (No 4)

1. [1]

   On 16 September 2022 I made orders dismissing these proceedings. [1] On that occasion I reserved the question of costs and gave the parties an opportunity to provide written submissions in relation to that issue. I have received submissions from the solicitor for the defendants.

2. [2]

   In circumstances where the plaintiff was unrepresented, I directed the Registrar to forward a copy of my judgment to him. No submissions have been received from the plaintiff but I proceed on the assumption that he is aware of the orders I previously made.

3. [3]

   The defendants seek an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff be ordered to pay their costs in a gross sum of $13,200.00. In support of that position, the defendants rely upon the affidavit of Mark Henry of 20 July 2022.

4. [4]

   That affidavit establishes that, as at the date on which it was sworn, the defendants’ costs were $13,200.00 (inclusive of GST). Since that time, there has been a hearing concluded over two separate hearing days, namely 17 August 2022, and 2 September 2022. The submissions of the solicitor for the defendants assert [2] that as of 17 August 2022, the defendants’ costs were $22,000.00 (inclusive of GST). Although there is no evidence in support of that assertion, as a matter of common sense the fact that the hearing proceeded over two days would have seen the defendants’ costs increase over and above what they were on 20 July 2022. Accordingly, I am satisfied that the gross sum which is sought represents a significantly discounted amount.

5. [5]

   In circumstances where the defendants were successful in having the proceedings dismissed, there is no reason why costs should not follow the event. Bearing in mind the specific order for costs sought by the defendants, s 98 of the Civil Procedure Act 2005 (NSW) is in the following terms:

6. [6]

   The present order is sought pursuant to s 98(4)(c). In Quach v Horvath [3] I addressed the principles governing the making of such an order:

7. [7]

   Bearing in mind those principles, I am satisfied that the sum which has been sought by the defendants is appropriate. For the reasons I have given, it represents a significant discount having been applied to the actual costs which have been incurred.

8. [8]

   Further, the exercise of the discretion to make the order sought is particularly appropriate where any assessment is likely to be protracted and expensive. These proceedings have themselves been protracted, as will be evident from the number of occasions on which they have been before me for directions. They have also been expensive, as will be evident from the costs incurred by the defendants. Given that history, there is every reason to think that, absent the order sought being made, the resolution of the question of costs would be similarly protracted, which would necessitate the defendants incurring further expense. That outcome should be avoided.

ORDER

1. [9]

   For those reasons I make the following order:

   1. (1)

      Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), I order that the plaintiff pay the costs of the defendants in the gross sum of $13,200.00.

   2. (2)

      I direct the Registrar to forward a copy of this judgment to the plaintiff.