Pirovic v Barbieri [2021] NSWSC 1460

Pirovic v Barbieri [2021] NSWSC 1460

Because the costs issue had already been delayed substantially, Ms Barbieri's conduct had protracted the process, the trial judge was familiar with the issues, and the affidavits and invoices provided an adequate evidentiary basis, it was appropriate to determine gross sum costs without deferral or conventional assessment. The hourly rates and work of Ms Abbott and Mr Drummond were not shown to be excessive, but a 30% discount should be applied to all legal fees, including counsel's fees, excluding court filing fees and other disbursements, to allow for assessment contingencies and possible solicitor performance of some counsel work.

Jurisdiction
Australia
Judgment Date
11 November 2021
Procedural Posture
Costs Application / Further Amended Notice of Motion for Gross Sum Costs Orders After Judgment and Costs Judgment
Outcome
Application for lump sum costs orders granted in part, with a 30% discount applied to legal fees including counsel's fees; deferral or stay pending appeal was refused.
Legal Topics
['gross Sum Costs Order' 'ordinary Basis Costs' "counsel's Fees" 'costs Assessment' 'stay Pending Appeal' 'executor Liability for Costs']
['civil Procedure' 'costs' 'equity'] ['gross Sum Costs Order' 'ordinary Basis Costs' "counsel's Fees" 'costs Assessment' 'stay Pending Appeal' 'executor Liability for Costs']

Case Brief

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Procedural Posture

Costs Application / Further Amended Notice of Motion for Gross Sum Costs Orders After Judgment and Costs Judgment

Legal Issues

  1. 1 ['Whether the Court should make a lump sum costs order rather than defer the matter or require conventional costs assessment.' "Whether counsel's fees and solicitors' fees claimed by the Pirovic parties were appropriate and reasonable." "Whether a discount should be applied to legal fees, including counsel's fees." "Whether determination or entry of the lump sum costs orders should be stayed pending Ms Barbieri's proposed or filed appeal."]

Ratio Decidendi

Because the costs issue had already been delayed substantially, Ms Barbieri's conduct had protracted the process, the trial judge was familiar with the issues, and the affidavits and invoices provided an adequate evidentiary basis, it was appropriate to determine gross sum costs without deferral or conventional assessment. The hourly rates and work of Ms Abbott and Mr Drummond were not shown to be excessive, but a 30% discount should be applied to all legal fees, including counsel's fees, excluding court filing fees and other disbursements, to allow for assessment contingencies and possible solicitor performance of some counsel work.

Court Disposition

Application for lump sum costs orders granted in part, with a 30% discount applied to legal fees including counsel's fees; deferral or stay pending appeal was refused.

Orders

  • ["In the Mortgage Proceedings, pursuant to ss.98(1)(b) and 98(4) of the Civil Procedure Act 2005 (NSW) and r.42.4 of the Uniform Civil Procedure Rules 2005 (NSW), the defendant / cross claimant pay the plaintiffs / cross defendants $558,217.95 less a 30% discount on all legal fees, including counsel's fees, but...