RRZ Pty Ltd v Fogo Brazilia Holdings Pty Ltd [2021] NSWSC 873

RRZ Pty Ltd v Fogo Brazilia Holdings Pty Ltd [2021] NSWSC 873

It was appropriate to fix the second and third defendants' costs thrown away in a gross sum because the amount was relatively modest, the issue was presented simply, and the plaintiff's impecuniosity made recovery of costs of assessment unlikely. After excluding unsupported or unjustified components and applying a broad brush discount, the recoverable amount was fixed at $7,700. However, although Mr Levitt made serious misjudgments in the adequacy and timing of the plaintiff's evidence on stultification, his conduct was not shown to be improper, unreasonable or negligent, or sufficiently delinquent to justify a personal costs order under s 99 or the Court's supervisory jurisdiction.

Jurisdiction
Australia
Judgment Date
20 July 2021
Procedural Posture
Costs / Determination of Costs Thrown Away by Adjournment of Security for Costs Motion and Application for Solicitor to Pay Costs Personally
Outcome
The costs payable by the plaintiff to the second and third defendants were fixed in the gross sum of $7,700, and the Court declined to order the plaintiff's solicitor to pay those costs personally.
Legal Topics
['gross Sum Costs Orders' 'personal Costs Orders Against Solicitors' 'security for Costs' 'interlocutory Costs' 'impecunious Corporate Plaintiff' 'representative Proceedings']
['costs' 'civil Procedure'] ['gross Sum Costs Orders' 'personal Costs Orders Against Solicitors' 'security for Costs' 'interlocutory Costs' 'impecunious Corporate Plaintiff' 'representative Proceedings']

Case Brief

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Procedural Posture

Costs / Determination of Costs Thrown Away by Adjournment of Security for Costs Motion and Application for Solicitor to Pay Costs Personally

Legal Issues

  1. 1 ["Whether the Court should fix the second and third defendants' costs thrown away in a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)." 'Whether the amount should be $10,000 or another amount.' "Whether the plaintiff's solicitor, Stewart Alan Levitt, should be ordered personally to pay the costs." 'Whether any personal costs order should be payable forthwith.']

Ratio Decidendi

It was appropriate to fix the second and third defendants' costs thrown away in a gross sum because the amount was relatively modest, the issue was presented simply, and the plaintiff's impecuniosity made recovery of costs of assessment unlikely. After excluding unsupported or unjustified components and applying a broad brush discount, the recoverable amount was fixed at $7,700. However, although Mr Levitt made serious misjudgments in the adequacy and timing of the plaintiff's evidence on stultification, his conduct was not shown to be improper, unreasonable or negligent, or sufficiently delinquent to justify a personal costs order under s 99 or the Court's supervisory jurisdiction.

Court Disposition

The costs payable by the plaintiff to the second and third defendants were fixed in the gross sum of $7,700, and the Court declined to order the plaintiff's solicitor to pay those costs personally.

Orders

  • ['The amount of the costs payable by the plaintiff to the second and third defendants under order 2 made on 2 July 2021 be fixed in the gross sum of $7,700 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' "The Court declines to order that the plaintiff's solicitor pay the costs personally."]