Stephens v Giovenco; Dick v Giovenco (No 2) [2011] NSWCA 144

Stephens v Giovenco; Dick v Giovenco (No 2) [2011] NSWCA 144

The Court held that the basis for excluding the ss 338 and 338A Legal Profession Act 2004 limits was not made out because Mr Dick had a reasonable chance of total success and his conduct did not satisfy s 341. Although a Bullock or Sanderson order was not justified, factors including Ms Giovenco's reasonable offer, Mr Dick's failure to offer settlement, and the costs consequences of his defence justified requiring Mr Dick to contribute one-third of the costs for which Ms Giovenco was liable to Mr Stephens. Mr Dick achieved some success on appeal but lost issues that took significant time, so he was ordered to pay one-third of Ms Giovenco's costs of his appeal, and the parties were to bear...

Jurisdiction
Australia
Judgment Date
08 June 2011
Procedural Posture
Costs Determination in Appeals Arising From Proceedings for Damages Under S 4 of the Compensation to Relatives Act 1897 / On the Papers After Both Appeals Were Allowed; Written Submissions on Costs
Outcome
Costs orders made; no order excluding the operation of s 338 and/or s 338A of the Legal Profession Act 2004.
Legal Topics
['legal Profession Act 2004 Maximum Costs Provisions' 'exclusion From Maximum Costs Limitation' 'bullock or Sanderson Order' 'costs of Appeal' 'cross Claims' 'compensation to Relatives Act Claim']
['costs' 'personal Injury Damages' 'civil Procedure' 'appeals'] ['legal Profession Act 2004 Maximum Costs Provisions' 'exclusion From Maximum Costs Limitation' 'bullock or Sanderson Order' 'costs of Appeal' 'cross Claims' 'compensation to Relatives Act Claim']

Case Brief

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Procedural Posture

Costs Determination in Appeals Arising From Proceedings for Damages Under S 4 of the Compensation to Relatives Act 1897 / On the Papers After Both Appeals Were Allowed; Written Submissions on Costs

Legal Issues

  1. 1 ['Whether provision of s 338 and s 338A of the Legal Profession Act 2004 should be excluded' 'Whether a Bullock or Sanderson order should be made' "What costs order should be made for Mr Dick's appeal" 'What costs order should be made for the cross-claims']

Ratio Decidendi

The Court held that the basis for excluding the ss 338 and 338A Legal Profession Act 2004 limits was not made out because Mr Dick had a reasonable chance of total success and his conduct did not satisfy s 341. Although a Bullock or Sanderson order was not justified, factors including Ms Giovenco's reasonable offer, Mr Dick's failure to offer settlement, and the costs consequences of his defence justified requiring Mr Dick to contribute one-third of the costs for which Ms Giovenco was liable to Mr Stephens. Mr Dick achieved some success on appeal but lost issues that took significant time, so he was ordered to pay one-third of Ms Giovenco's costs of his appeal, and the parties were to bear...

Court Disposition

Costs orders made; no order excluding the operation of s 338 and/or s 338A of the Legal Profession Act 2004.

Orders

  • ["In Mr Stephens' appeal, Mr Dick's cross-claim against Mr Stephens dismissed." "In Mr Stephens' appeal, Ms Giovenco to pay Mr Stephens' costs of the proceedings below and Mr Stephens' costs of the appeal, excluding any incremental costs attributable solely to cross-claims between Mr Stephens and Mr Dick, and any...