Lo Surdo v Public Trustee [2005] NSWSC 1290

New South Wales Supreme Court

CITATION : Lo Surdo v Public Trustee [2005] NSWSC 1290

HEARING DATE(S) : 6 December 2005

JUDGMENT DATE : 6 December 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Order that plaintiff pay costs of second defendant (contesting beneficiary) in the sum of $150,000. Order that the costs of the first defendant (executor) since 9 May 2005 be paid out of the estate on the indemnity basis.

CATCHWORDS : PROCEDURE [657] - Costs - Taxation - Assessment in lieu of taxation - Power to order gross sum - Circumstances in which order for gross sum made.

LEGISLATION CITED : Civil Procedure Act 2005 s 94(8)(c)

CASES CITED : Lo Surdo v Public Trustee [2005] NSWSC 1186

Carmelo Lo Surdo (P) PARTIES : Public Trustee as Executor of the Last Will and Testament of the Late Carmela Cipolla (D1) Iolanda Quagliero (D2)

FILE NUMBER(S) : SC 3317/02

R D Wilson (P) No appearance (D1) COUNSEL : A M Gruzman (D2)

N J Papallo & Co (P) P J Whitehead Esq (D1) SOLICITORS : Di Lizio & Associates (D2)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 6 DECEMBER 2005

3317/02 CARMELO LO SURDO v PUBLIC TRUSTEE & ORS (ESTATE OF CARMEN CIPOLLA) JUDGMENT 1 HIS HONOUR: On 23 November 2005 I delivered judgment in this matter to the effect that the plaintiff's claim should fail and dismissed his summons: Lo Surdo v Public Trustee [2005] NSWSC 1186 ("my judgment"). The matter is before me this morning for costs. 2 Mr Gruzman, of counsel for the second defendant, has asked that the plaintiff be ordered to pay the second defendant's costs of the proceedings. Mr R D Wilson, of counsel for the plaintiff, has conceded that that is the usual order in a case of unsuccessful Family Provision Act proceedings and there is no particular submission that he is instructed to put now in opposition to that order. In the circumstances, I propose to order that the plaintiff pay the second defendant's costs of the proceedings. 3 Once it became apparent that that course would be followed, Mr Gruzman moved for an order that the second defendant should have as costs a gross sum specified by the Court under s 94(8)(c) of the Civil Procedure Act 2005. The gross sum he asked for was $184,560. That was calculated in this way. There was evidence before me at the trial that the costs which the second defendant would be charged by her solicitor were estimated at $230,700. The second defendant concedes that it is appropriate that the costs to be recovered be somewhat less than that and the figure of $184,560 is 80 per cent of $230,700. 4 The plaintiff's counsel has informed me that he and his solicitors are unlikely to have instructions to participate further in the matter. If the question of costs is stood over to be argued on a later date, they are unlikely to be instructed to attend. Furthermore, if there is simply a costs order in general terms, so that an assessment is necessary, the solicitors are unlikely to be instructed to participate in that assessment. That is one reason why it would be desirable, if the Court felt able, to make a lump sum order. 5 I should add that part of the plaintiff's difficulties in getting instructions arises from the fact that he has returned to Sicily where communication with him is difficult, being necessarily made in writing in English which then has to be translated into Italian and vice versa,. It may well be that there are some doubts as to whether the costs will ever be paid, since the plaintiff has no assets in Australia and the situation as to his assets in Sicily is uncertain, as I have found in my judgment. On the other hand, Italy is a country in which Australian judgments are able to be enforced by a comparatively simple procedure. 6 The plaintiff's counsel feels unable to concede the appropriateness of an amount of $184,560, or even to say that he does not oppose an order in that sum. He refers to the fact that the evidence at the trial was that the plaintiff's costs were about $120,000 and states again from the bar table that that is the case. He says so in the presence of his solicitor, whom I am able to take as assenting to that proposition. Mr Gruzman very sensibly says that no further evidence need be given and he is prepared for this application to proceed on the basis that the plaintiff's costs were $120,000. That is considerably less than the $230,700 which the second defendant's solicitors have charged. 7 The difference between the sums contended for by the second defendant and the plaintiff as being appropriate as the costs to be ordered in these proceedings are the $180,000-odd contended for by the second defendant and the $120,000 which, in effect, it is conceded on the plaintiff's behalf are appropriate for a set of costs in the proceedings. It seems to me that the appropriate course is to fix a lump sum and to fix that sum at $150,000, which is about half way between the two figures contended for. This seems to me to be the appropriate and satisfactory result in all the circumstances, and the order I propose to make is an order for costs specifying $150,000 as the appropriate sum. All the above factors conduce to the appropriateness of this course, whereby further moneys are not expended on establishing to the last dollar what the appropriate amount of costs is. 8 Mr Ellison, of Senior Counsel for the first defendant, the executor, the Public Trustee, is not in court this morning, but also makes an application, conveyed to the Court by Mr Gruzman, for an order for costs against the plaintiff. That application, however, really completely ignores the fact that on 9 May 2005, at the commencement of the trial, I ordered by consent that the costs of the first defendant be paid out of the estate of the deceased on an indemnity basis. That there may be any doubt at all about this being by consent of all parties, the short minutes by reference to which those orders were made by the Court were attested by the signatures of the solicitors for all parties. At a time when it was far from apparent that the plaintiff was going to lose the proceedings, both the first and second defendants solemnly agreed to the costs of the defendant being dealt with in that way. I do not propose to set that order aside and I shall not allow the costs of the first defendant up to that stage to be treated in any other way. It is doubtful that very much more by way of costs has been incurred by the first defendant since that time. To cover that situation, I am prepared make an order in respect of the first defendant's costs incurred after 9 May 2005. However, I propose to make the order in the same terms as the order of 9 May 2005, namely, that those costs be paid out of the estate of the deceased on an indemnity basis. 9 As it is indicated by the plaintiff's counsel that it is appropriate, I propose to add an order that the exhibits be returned.