James v Australian and New Zealand Banking Group Limited [2016] NSWSC 833

James v Australian and New Zealand Banking Group Limited [2016] NSWSC 833

A gross sum costs order was justified given the likelihood that the plaintiff would not be able to discharge the costs liability and had unnecessarily contributed to the costs; the court made adjustments and discounts based on available evidence and assessed a reasonable gross sum for solicitors' and counsel's fees at $210,000.

Parties
First Plaintiff: David Anthony James; Second Plaintiff: Liquor National Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 100 586 776); Third Plaintiff: Wine National Pty Ltd (ACN 100 586 785) (Receivers and Managers Appointed) (In Liquidation); Fourth Plaintiff: Print National Pty Ltd (ACN 132 502 697) (Receivers and Managers Appointed) (In Liquidation); Fifth Plaintiff: Print National Australia Pty Ltd (ACN 107 512 649) (Receivers and Managers Appointed) (In Liquidation); Sixth Plaintiff: TLT Nominees Pty Ltd (ACN 132 250 307) (Receivers and Managers Appointed) (In Liquidation); Seventh Plaintiff: Newcastle Liquor Wholesalers Pty Ltd (ACN 135 338 635) (Receivers and Managers Appointed) (In Liquidation); Eighth Plaintiff: Aramax Nominees Pty Ltd (ACN 163 183 337); Ninth Plaintiff: Primax Nominees Pty Ltd (ACN 163 183 177); First Defendant: Australian and New Zealand Banking Group Limited (ABN 11 005 357 522); Second Defendant: David Paul Merryweather and Gregory Hall both in their personal capacities and in their capacities as joint and several receivers and managers of each of TLT Nominees Pty Ltd ACN 133 250 307 (In Liquidation) (Receivers and Managers Appointed) and Newcastle Liquor Wholesalers Pty Ltd ACN 135 338 635 (In Liquidation) (Receivers and Managers Appointed)
Jurisdiction
Australia
Judgment Date
23 June 2016
Procedural Posture
Civil Costs Application / Costs Determination After Dismissal of Motion
Outcome
The first plaintiff is ordered to pay the defendants the sum of $210,000 in respect of the defendants' costs of the notice of motion filed on 17 February 2016.
Legal Topics
Costs, Gross Sum Costs Order, Assessment of Costs
Civil Procedure Costs Gross Sum Costs Order Assessment of Costs

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Parties

David Anthony James

First Plaintiff

Liquor National Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 100 586 776)

Second Plaintiff

Wine National Pty Ltd (ACN 100 586 785) (Receivers and Managers Appointed) (In Liquidation)

Third Plaintiff

Print National Pty Ltd (ACN 132 502 697) (Receivers and Managers Appointed) (In Liquidation)

Fourth Plaintiff

Print National Australia Pty Ltd (ACN 107 512 649) (Receivers and Managers Appointed) (In Liquidation)

Fifth Plaintiff

TLT Nominees Pty Ltd (ACN 132 250 307) (Receivers and Managers Appointed) (In Liquidation)

Sixth Plaintiff

Newcastle Liquor Wholesalers Pty Ltd (ACN 135 338 635) (Receivers and Managers Appointed) (In Liquidation)

Seventh Plaintiff

Aramax Nominees Pty Ltd (ACN 163 183 337)

Eighth Plaintiff

Primax Nominees Pty Ltd (ACN 163 183 177)

Ninth Plaintiff

Australian and New Zealand Banking Group Limited (ABN 11 005 357 522)

First Defendant

David Paul Merryweather and Gregory Hall both in their personal capacities and in their capacities as joint and several receivers and managers of each of TLT Nominees Pty Ltd ACN 133 250 307 (In Liquidation) (Receivers and Managers Appointed) and Newcastle Liquor Wholesalers Pty Ltd ACN 135 338 635 (In Liquidation) (Receivers and Managers Appointed)

Second Defendant

Procedural Posture

Civil Costs Application / Costs Determination After Dismissal of Motion

Legal Issues

  1. 1 Whether a gross sum costs order should be made under s 98(4) of the Civil Procedure Act 2005 (NSW)
  2. 2 The quantum of costs to be awarded

Ratio Decidendi

A gross sum costs order was justified given the likelihood that the plaintiff would not be able to discharge the costs liability and had unnecessarily contributed to the costs; the court made adjustments and discounts based on available evidence and assessed a reasonable gross sum for solicitors' and counsel's fees at $210,000.

Court Disposition

The first plaintiff is ordered to pay the defendants the sum of $210,000 in respect of the defendants' costs of the notice of motion filed on 17 February 2016.

Orders

  • The first plaintiff pay the defendants $210,000 as gross sum costs in respect of the defendants’ costs of the notice of motion filed on 17 February 2016.