Wende v Horwath (NSW) Pty Limited (No 3) [2015] NSWDC 73

Wende v Horwath (NSW) Pty Limited (No 3) [2015] NSWDC 73

The Court accepted Ms Vallejo's unchallenged evidence as an appropriate basis for apportioning the assessed costs, subject to reallocating the cost of assessment according to the approximate number of bill items for each proceeding rather than equally. The Court also held that, given the history of costs disputes, the likely delay and expense of assessment, and the modest and reasonable expert-supported calculation, it was appropriate to make a gross sum costs order, with a discounted allowance for costs incurred since 23 October 2014 because those later costs were not supported by affidavit evidence.

Jurisdiction
Australia
Judgment Date
01 April 2015
Procedural Posture
Civil Costs Proceedings / Determination of Costs Payable Under S 384(2)(a) of the Legal Profession Act 2004 and Application for a Lump Sum Costs Order After Remitter From the Court of Appeal
Outcome
Costs determined and gross sum costs order made in favour of the defendant; entry of orders stayed for 14 days with liberty to the plaintiffs to apply in respect of the $20,000 component.
Legal Topics
['lump Sum Costs Order' 'assessment of Costs' 'apportionment of Costs Between Local Court, Supreme Court and Court of Appeal Orders' 'legal Aid Contribution']
['costs' 'civil Procedure' 'legal Profession'] ['lump Sum Costs Order' 'assessment of Costs' 'apportionment of Costs Between Local Court, Supreme Court and Court of Appeal Orders' 'legal Aid Contribution']

Case Brief

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Procedural Posture

Civil Costs Proceedings / Determination of Costs Payable Under S 384(2)(a) of the Legal Profession Act 2004 and Application for a Lump Sum Costs Order After Remitter From the Court of Appeal

Legal Issues

  1. 1 ['What amount of assessed costs should have been determined by the costs assessor in respect of the Local Court, Supreme Court and Court of Appeal proceedings.' 'Whether a lump sum costs order should be made in respect of the District Court costs and, if so, the amount of that order.']

Ratio Decidendi

The Court accepted Ms Vallejo's unchallenged evidence as an appropriate basis for apportioning the assessed costs, subject to reallocating the cost of assessment according to the approximate number of bill items for each proceeding rather than equally. The Court also held that, given the history of costs disputes, the likely delay and expense of assessment, and the modest and reasonable expert-supported calculation, it was appropriate to make a gross sum costs order, with a discounted allowance for costs incurred since 23 October 2014 because those later costs were not supported by affidavit evidence.

Court Disposition

Costs determined and gross sum costs order made in favour of the defendant; entry of orders stayed for 14 days with liberty to the plaintiffs to apply in respect of the $20,000 component.

Orders

  • ['Determine the costs payable pursuant to s 384(2)(a) of the Legal Profession Act 2004 under the Local Court order to be $107,719.70.' 'Determine the costs payable pursuant to s 384(2)(a) of the Legal Profession Act 2004 under the Supreme Court order to be $39,078.38.' 'Determine the costs payable pursuant to s...