Category Archives: Costs

Cachia v Hanes [1994] HCA 14 | 13 April 1994

ON THIS DAY in 1994, the High Court of Australia delivered Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374 (13 April 1994).

Costs recoverable from an unsuccessful party do not include time spent by a successful litigant who is not a lawyer.

Costs are recoverable under the indemnity principle: for money paid and liabilities incurred for professional legal services. No such costs are incurred when a non-lawyer represents themselves.

http://www.austlii.edu.au/au/cases/cth/HCA/1994/14.html

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Sydney, Australia

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Queensland v J L Holdings Pty Ltd [1997] HCA 1 | 14 JANUARY 1997

ON 14 JANUARY 1997, the High Court of Australia delivered Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/1.html

Per Dawson, Gaudron and McHugh JJ (at 154):

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

The decision has since been used as an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend (2) case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.  Since the High Court’s 2007 decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html, JL Holdings no longer is authority for propositions (2) and (3).

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Sydney, Australia

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Free guide to the Land and Environment Court

A Practitioners Guide to the Land and Environment Court (third edition, 2009)  is a handy introduction to the rules and procedures of the NSW Land and Environment Court. It is published free of charge courtesy of the Environmental Law Committee of the NSW Young Lawyers.

Lawyers

Sydney, Australia

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Elderly widow awarded costs in pro bono litigation

In the matter of Mainieri & Anor v Cirillo [2014] VSCA 227 (17 September 2014), the Victorian Court of Appeal awarded costs to the successful plaintiff who was represented on a pro bono basis.

Rita Cirillo sold her property and contributed the proceeds towards her son and daughter-in-law’s mortgage on the condition that she live with them indefinitely and that they take care of her. Her relationship with her son and daughter-in-law later broke down and it was not longer practical for her to remain living with them. When she sought repayment, her son and daughter-in-law alleged that the monies were an out and out gift.

The Court of Appeal held that Cirillo was entitled to an equitable lien or charge over the property to secure repayment with interest.

On the question of costs, there was a dispute over whether or not the Cirillo was entitled to costs as she was represented on a pro bono basis. The court held that the costs payable to her lawyers, Clayton Utz and Dr Glover, were payable under costs agreements that were contingent upon a costs order being made.

Lawyers

Sydney, Australia

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Idoport Pty Limited and Anor v National Australia Bank Limited [2001] NSWSC 744 | 13 September 2001

ON 13 SEPTEMBER 2001, the Supreme Court of NSW delivered Idoport Pty Limited and Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited “JMG” v National Australia Bank Limited [35] [2001] NSWSC 744 (13 September 2001).

In a class action proceedings against the National Australia Bank, the Supreme Court of NSW made an order for security for costs against the plaintiff.

The principles relevant to ordering the provision for security for costs against a plaintiff include:

  • The court has the power to order security for costs against plaintiffs who are natural persons.
  • The court’s discretion in making the order is broad.
  • The purpose is to protect the court’s ability to properly exercise its jurisdiction to order costs to the successful party.
  • The court needs to seek a balance between protecting the defendant and avoiding injustice to an impecunious plaintiff by shutting him or her out of the proceedings or otherwise prejudicing him or her in the proceedings.
  • The inability of the plaintiff to satisfy a costs order weights heavily in the exercise of the court’s discretion.
  • A court must be satisfied that a plaintiff is unable (rather than unwilling) to provide security for costs before it can regard the proceedings to be stultified by the order.
  • The defendant may seek security for the costs incurred before proceedings commences, provided that they were incurred “in reasonable anticipation of litigation.”
  • Costs are to be calculated by reference to a clear methodology rather than mathematical certainty.
  • Courts are to factor into their estimate a discount for the prospect that the proceedings will not proceed to a full hearing and settle at mediation.

In these particular proceedings, the provision for security for costs was ordered in the sum of $6,212,962.

Lawyers

Sydney, Australia

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Ashby v Slipper [2014] FCA 973

Ashby v Slipper [2014] FCA 973 (11 September 2014).

Lawyers

Sydney, Australia

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Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222.

Lawyers

Sydney, Australia

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Han v Stephen Paul Firth trading as Firth The Compensation Lawyers [2014] NSWDC 141

Han v Stephen Paul Firth trading as Firth The Compensation Lawyers [2014] NSWDC 141 (3 September 2014)

Lawyers

Sydney, Australia

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Costs Guidebook 6th Edition

The Law Society of NSW has released the Costs Guidebook 6th Edition. Law Society members may download a free pdf version.

For more information go to Costs Guidebook

Lawyers

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Sydney Lawyers

Dlakic t/as Johnston Vaughan Solicitors v Despot [2014] NSWSC 1203

Lawyers

Sydney, Australia

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