Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311

Mr Bell's application to have costs specified in a gross sum was not a variation of the original costs order and therefore was not subject to the 14-day limit in UCPR r 36.16(3A). In any event, s 98(3) and (4) of the Civil Procedure Act 2005 (NSW) authorised the Court to specify costs in a gross sum before assessment. The materials, including solicitors' and counsel's invoices, enabled the Court to apply a broad-brush assessment and fairly fix the appeal costs at $70,000 and the motion costs at $5,000.

Jurisdiction
Australia
Judgment Date
15 December 2023
Procedural Posture
Costs Application by Notice of Motion in Appeals / Court of Appeal Decision on Notice of Motion After Dismissal of Appeals and Original Costs Order
Outcome
Notice of motion granted; respondent's costs fixed in gross sums and ancillary orders made concerning release of money paid into court and the appellant's undertaking.
Legal Topics
['gross Sum Costs Order' 'variation of Judgment or Order' 'time Limit Under UCPR R 36.16' 'costs Assessment' 'post Judgment Interest' 'undertaking to the Court' 'release of Money Paid Into Court']
['costs' 'civil Procedure' 'appellate Procedure'] ['gross Sum Costs Order' 'variation of Judgment or Order' 'time Limit Under UCPR R 36.16' 'costs Assessment' 'post Judgment Interest' 'undertaking to the Court' 'release of Money Paid Into Court']

Case Brief

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Procedural Posture

Costs Application by Notice of Motion in Appeals / Court of Appeal Decision on Notice of Motion After Dismissal of Appeals and Original Costs Order

Legal Issues

  1. 1 ['Whether an application that costs be specified in a gross sum is an application to vary the original costs order or an application for a further order.' 'Whether s 98 of the Civil Procedure Act 2005 (NSW) authorises specifying costs in a gross sum before assessment notwithstanding the 14-day time limit in UCPR r 36.16(3A).' "Whether the respondent's costs of the appeal and the notice of motion should be fixed in gross sums." "Whether payment of the judgment sum, interest and costs into the respondent's solicitor's trust account would breach or discharge the appellant's undertaking."]

Ratio Decidendi

Mr Bell's application to have costs specified in a gross sum was not a variation of the original costs order and therefore was not subject to the 14-day limit in UCPR r 36.16(3A). In any event, s 98(3) and (4) of the Civil Procedure Act 2005 (NSW) authorised the Court to specify costs in a gross sum before assessment. The materials, including solicitors' and counsel's invoices, enabled the Court to apply a broad-brush assessment and fairly fix the appeal costs at $70,000 and the motion costs at $5,000.

Court Disposition

Notice of motion granted; respondent's costs fixed in gross sums and ancillary orders made concerning release of money paid into court and the appellant's undertaking.

Orders

  • ["Order the appellant to pay the respondent's costs, as ordered on 12 October 2023, in the gross sum of $70,000." "Order the appellant to pay the respondent's costs of the notice of motion filed on 2 November 2023 in the gross sum of $5,000." 'Order that the sum of $30,000 paid into court by the appellant and...