Supreme Court New South Wales Medium Neutral Citation: Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales (No 2) [2023] NSWSC 1597 Hearing dates: On the papers Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Equity Before: Kunc J Decision: Gross sum costs order made Catchwords: COSTS – party/party – gross sum costs order – no issue of principle Cases Cited: Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250 Category: Costs Parties: Aidan Llewellyn trading as the Trustee for the House of Llewellyn (Plaintiff) State of New South Wales (First Defendant) New South Wales Treasury Corporation (Second Defendant) The Secretary, New South Wales Treasury (Third Defendant) NSW Trustee & Guardian (Fourth Defendant) Representation: Plaintiff (in person) Counsel: E Dunlop (Defendants) Solicitors: File Number(s): 2023/134084 JUDGMENT Summary 1. On 19 October 2023, the Court dismissed the plaintiff's summons: Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales [2023] NSWSC 1250 (Judgment). These reasons assume familiarity, and should be read with, the Judgment. 2. At the conclusion of the Judgment, the Court ordered the plaintiff to pay the defendants' costs of the summons, including of the defendants' motion filed 9 June 2023 for the summary dismissal of the summons (which motion was successful). The Court ordered a timetable for the determination in chambers of the defendants' foreshadowed application for a gross sum costs order. 3. For the reason which follow, the Court accedes to the defendants' application for a gross sum costs order against the plaintiff in the amount of $8,167.63 (GST inc). Procedural history 1. At the conclusion of the Judgment, the Court made these orders: "27 The orders of the Court are: (1) Summons dismissed. (2) The plaintiff, described as "the petitioner, being Aidan Rees Llewellyn as the trustee for House of Llewellyn", is to pay the defendants' costs of the summons, including of their motion filed 9 June 2023. (3) The defendants are to file and serve affidavit evidence and written submissions in support of their application for a gross sum costs order on or before 1 November 2023. (4) The plaintiff is to file and serve affidavit evidence and written submissions in response to the defendant's application for a gross sum costs order on or before 30 November 2023. (5) The defendants are to file and serve any written submissions in reply on or before 8 December 2023. (6) Note that, in the absence of application otherwise by any party to be made no later than 13 December 2023, the defendant's application for a gross sum costs order will be determined on the papers." 1. In accordance with order (3), the defendants filed the affidavit of Ms K Mattes, together with submissions prepared by Ms E Dunlop of Counsel. 2. The plaintiff has filed neither evidence nor submissions in opposition to the defendants' application. 3. On 13 December 2023, my associate sent this email to the plaintiff: "…I note that under the orders made by his Honour you were to file and serve your submissions on the question of costs in response to the Crown's submissions, no later than 30 November 2023. Nothing has been received in the Registry or by me. His Honour has asked me to inform you that if you have not emailed me any submissions by close of business today his Honour will proceed to determine the issue of costs without further delay. …" 1. There was no reply to that email. Therefore, I have proceeded to deal with the defendants' application in chambers. Consideration 1. The Court accepts that Ms Mattes is an experienced litigation solicitor, having practiced in that area with the Crown Solicitor for 19 years. Her evidence included an explanation of how legal fees are charged within the state government when more than one agency is involved. In this case, while there were four defendants, there were only three agencies. Legal fees incurred on behalf of only one of those agencies incurred GST. 2. Ms Mattes' affidavit also included detailed narrative invoices to each of the agency clients setting out the work performed and the rates charged. I accept her evidence both as to the reasonableness of the rates and the work undertaken. I note that, correctly in my respectful view, Ms Mattes identified a small amount of work undertaken by the solicitor with the primary carriage of the matter that ought properly to have been done by a paralegal or clerk. The value of that work was $256 and Ms Mattes, in her calculations, deducted that amount as likely not to be recoverable on assessment. 3. Allowing for the fact that fees to only one of the three agencies incurred GST, the total fees charged by the Crown Solicitor was $8,236.70 (GST inc), from which for the purposes of this application the $256 was then deducted. 4. In accordance with the principles to which I refer below, Ms Mattes claimed 80% of the remaining fees, which rounded down was $6,000, with an additional amount to be added of $200 for GST. 5. Counsel's fees for the matter were $1,967.63 (GST inc). I accept Ms Mattes' evidence that on assessment, the full amount of counsel's fees would be allowed as a disbursement reasonably incurred. Consideration 1. I gratefully adopt as a convenient summary of the principles these paragraphs of Ms Dunlop's submissions: "6. The "principal purpose" of a specified gross sum costs order "is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process": Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15] (the Court), citing Hamod v New South Wales [2011] NSWCA 375 at [816]-[817]. 7. The principles relevant to whether a specified gross sum costs order should be awarded were recently set out in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] (the Court): "The power to make a gross sum costs order provided by s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is discretionary. Authority establishes that the discretion is not confined and may be exercised whenever the circumstances warrant its exercise; it should only be exercised when the Court considers that it can do so fairly between the parties, and that includes having sufficient confidence in arriving at an appropriate sum on the materials available; courts have typically applied a discount in assessing costs on a gross sum basis; and the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: see Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] and authority there cited. 8. In Ahern, the Court stated at [42]: "In making a gross sum costs order, the Court is entitled to take into account that if assessed on the ordinary basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of the total costs incurred (Bechara v Bates [2016] NSWCA 294 at [69]). Accordingly, in assessing the gross sum costs order, the Court should apply an "impressionistic" or "broad brush" approach in applying a discount to reflect that reality: [Hamod v New South Wales [2011] NSWCA 375] at [820]; Bechara at [14]."" 1. The Court accepts Ms Mattes' evidence both as to the reasonableness of the costs charged and the appropriateness of the 20% deduction. Furthermore, the Court accepts the submission that this is an appropriate case for a gross sum costs order for these reasons: 1. It will avoid the further expense of a costs assessment process in what is a small claim; 2. It will facilitate a just, quick and cheap resolution of the real issues in the proceedings; 3. It may be difficult to recover fees from the plaintiff, because there is evidence that the plaintiff does not reside in Australia; 4. There is some evidence (a statement by the plaintiff in a letter to the Registrar of the Court saying "we [sic] find ourselves incapable of rendering payment to the Court forthwith") that the plaintiff may not be in a position to satisfy any costs order; and 5. By reason of Ms Mattes' thorough and careful evidence, an appropriate gross sum can be fairly determined. 1. The Court finds the matter was conducted economically and efficiently on behalf of the defendants by the Crown Solicitor and counsel. To the extent that it may be relevant, in the experience of the Court in matters such as this the fees charged are appreciably lower than commercial litigation rates. The Court is confident that the amount sought is reasonable and can be fairly and properly determined having regard to the plaintiff's interests in the matter, notwithstanding his failure to participate in this stage of the argument. The small amount and overall reasonableness of the claim also support: 1. an outcome at the higher end of the 60% to 85% proportion referred to in [14] above; and 2. the Court not making the further discount that is sometimes made to reflect the advantage to the applicant of not having to proceed to an assessment and the potential disadvantage to the respondent of the broad brush nature of the gross sum assessment. Conclusion 1. The Court orders that: 1. The amount of costs which the defendants are entitled to be paid pursuant to order (2) made on 24 October 2023 is the gross sum of $8,167.63 (GST inc) instead of assessed costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023