Lawrence v Sammut (No. 6)

1. [1]

   On 30 November 2023 I dismissed with costs the plaintiff’s notices of motion filed on 7 August and 22 September 2023, and confirmed the Registrar’s decision of 10 July 2023: Lawrence v Sammut (No. 5) [2023] NSWSC 1476.

2. [2]

   In accordance with the timetable provided in that judgment, the defendants have made an application for a gross sum costs order by filing an affidavit of Karen McLean sworn 6 December 2023 together with written submissions of the same date. For reasons that remain unclear, affidavits of Ms McLean filed in February 2023 and June 2022 were also provided, but these predate the application for review of the Registrar’s decision, and it is only the costs of that application for review and the associated notices of motion that are the subject of the costs order I made on 30 November 2023.

3. [3]

   The plaintiff served his submissions in reply on 13 December 2023. He submitted a sum that he thought was fair - $13,563.00 - and pointed out that the defendants had exceeded the page limit for their submissions. There were other observations made that were not relevant.

Principles for gross sum costs order

1. [4]

   Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) provides that a court can make an order to the effect that the party to whom costs are to be paid is entitled to a specified gross sum instead of assessed costs.

2. [5]

   The Court of Appeal in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 summarised the relevant principles applicable to the making of a gross sum costs order:

Decision to decline to make a gross sum costs order

1. [6]

   Unfortunately, the affidavit of Ms McLean of 6 December 2023 outlines in only the broadest of terms the number of hours of work done but with insufficient detail as to what was done and when. Describing the date of the correspondence received from the unrepresented plaintiff and the number of pages involved is insufficient. The work identified as having been done by the paralegal and junior solicitor is unspecified. Counsel’s fees are referred to in the sum of $9,900.00, but the fee note describing the work done was not attached. An item referred to as “general costs recoveries and printing costs $531.51” was too vague. There is no evidence a bill has been prepared in the usual way and forwarded to the clients. The number of hours charged by Ms McLean - 41.7 - is not explained at all and seems excessive for the issues and limited matters of content to be dealt with.

2. [7]

   There is no application for indemnity costs although a submission is made that the Court should award 80% of the total professional costs claimed. It appears that the costs estimate provided by Ms McLean is an indemnity or solicitor/client costs figure, not party/party costs.

3. [8]

   It is unfortunate that there is such a paucity of detail when it is clear from the affidavits of 27 June 2022 and 1 February 2023 that the appropriate level of detail was provided for the Registrar so that she could make the necessary gross sum costs order in respect of the earlier parts of the proceedings.

4. [9]

   Whilst the principles cited in Ms McLean’s written submissions are correct and a broad-brush approach can and should be applied, it is the Court that applies the broad-brush to the necessary information and detail provided by the party seeking the order. The material needs to be at least sufficient to have a clear picture of the relevance, date, nature and subject matter of the work performed on dates that correspond to the part of the litigation in issue.

5. [10]

   As observed in Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, the Court should only exercise the power to make a gross sum costs order when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials.

6. [11]

   Unfortunately, the material provided does not meet that base level requirement and a gross sum costs order will not be made.

7. [12]

   The defendants are to bear their own costs of this application.