Naro Investments Pty Ltd & Ors v Benjamin & Khoury Pty Ltd (No.2) [2021] NSWSC 1198

Naro Investments Pty Ltd & Ors v Benjamin & Khoury Pty Ltd (No.2) [2021] NSWSC 1198

A specified gross sum costs order was warranted because no costs assessment had occurred, the clients' conduct had generated unnecessary costs and delay, there was a real risk that they would be unable to meet the judgment debt and further costs, and formal costs assessment would add significant expense to a dispute already concerning legal costs. Applying a fair, logical and reasonable broad brush assessment, the Court allowed counsel's fees for the self-represented period at an 85% recovery, discounted represented-period solicitors' and counsel's fees by 15%, allowed mediation costs in full, and fixed the gross sum at $90,449.59.

Jurisdiction
Australia
Judgment Date
21 September 2021
Procedural Posture
Costs Dispute Judgment Between Solicitors and Former Clients / Notice of Motion for Specified Gross Sum Costs Order Decided on the Papers
Outcome
Specified lump sum costs order made against the plaintiffs/cross-defendants in the amount of $90,449.59, inclusive of the costs of the Motion.
Legal Topics
['gross Sum Costs Order' 'civil Procedure Act 2005, S 98(4)(c)' 'costs Assessment' 'self Represented Solicitors' 'counsel Fees' 'party/party Costs']
['civil Procedure' 'costs'] ['gross Sum Costs Order' 'civil Procedure Act 2005, S 98(4)(c)' 'costs Assessment' 'self Represented Solicitors' 'counsel Fees' 'party/party Costs']

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Procedural Posture

Costs Dispute Judgment Between Solicitors and Former Clients / Notice of Motion for Specified Gross Sum Costs Order Decided on the Papers

Legal Issues

  1. 1 ['Whether a specified gross sum should be ordered instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c).' 'What quantum should be fixed for the specified gross sum costs order.' 'What costs order should be made on the Costs Motion.']

Ratio Decidendi

A specified gross sum costs order was warranted because no costs assessment had occurred, the clients' conduct had generated unnecessary costs and delay, there was a real risk that they would be unable to meet the judgment debt and further costs, and formal costs assessment would add significant expense to a dispute already concerning legal costs. Applying a fair, logical and reasonable broad brush assessment, the Court allowed counsel's fees for the self-represented period at an 85% recovery, discounted represented-period solicitors' and counsel's fees by 15%, allowed mediation costs in full, and fixed the gross sum at $90,449.59.

Court Disposition

Specified lump sum costs order made against the plaintiffs/cross-defendants in the amount of $90,449.59, inclusive of the costs of the Motion.

Orders

  • ["Note that with respect to the costs order in Order (3) of the Court's orders made on 19 March 2021 pursuant to Civil Procedure Act, s 98(4)(c) an order will be made for a specified gross sum instead of assessed costs." "Note that pursuant to Order (1), there will be judgment for the defendant/cross-claimant...