Slater & Gordon Ltd v De Vos [2011] NSWSC 1215

Supreme Court New South Wales

Medium Neutral Citation: Slater & Gordon Ltd v De Vos [2011] NSWSC 1215 Hearing dates: 16 September 2011 Decision date: 16 September 2011 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: See [6] Catchwords: PRACTICE AND PROCEDURE - application brought by the plaintiff to pay moneys held by it into Court - determination of the amount of costs payable to the plaintiff for bringing the application - open offer in respect of its costs made by the plaintiff not accepted by one of the defendants Category: Costs Parties: Slater & Gordon Ltd (plaintiff) Rudolph Henry De Vos (first defendant) Lynette Dawn Brocktoff (nee De Vos) (second defendant) Louis Robert De Vos (third defendant) Representation: T Maltz (plaintiff) R H De Vos (first defendant in person) L R De Vos (third defendant in person) Slater & Gordon (plaintiff) File Number(s): SC 2011/226674

EX TEMPORE Judgment 1In this matter the parties are agreed there is power in the rules for the Court to fix an amount for costs. The parties have invited me to do so and I shall do so. 2The costs that are under discussion are the costs of the plaintiff, Slater & Gordon Ltd ( "Slater & Gordon" ), a firm of solicitors, in bringing an application to pay moneys held by it into Court. There has been a previous mention of the matter in which counsel was involved, and then today's application. As matters have transpired there is no dispute that the moneys in question, approximately $38,000, should be paid into Court. The only issue today is whether Slater & Gordon should have its costs. I think it is accepted by the defendants that they should. The remaining issue, subject to one aspect that I will mention, is the amount of costs. 3One of the two executors who are here today, Mr Rudolph Henry De Vos, who is the first defendant, consents to the open offer made by Slater & Gordon through its counsel, Mr T Maltz, to accept $6,000. Ms Denise De Vos, who is, along with the defendant executors, a beneficiary under the will, also consents. Mrs Lynette Dawn Brocktoff (nee De Vos), who is also an executor and is the second defendant, is not present in court but she has agreed to the payment of moneys into court and has consented to an order that Slater & Gordon be paid the costs of the application. Mr Louis Robert De Vos, who is the third defendant and one of the executors, does not consent to the open offer made by Slater & Gordon through Mr Maltz to accept $6,000, but Mr De Vos has made an open offer to pay the amount of $3,000. 4I have been informed by Mr Maltz (and there is no objection to the provision of amounts incurred in this fashion) that the plaintiff firm has incurred costs of approximately $12,300 which includes a filing fee of $2,000 and other disbursements totalling $2,997; that their professional fees are in the order of $4,534; that counsel fees excluding yesterday and today are $3,000 (charged at $340 per hour); and that for yesterday and today another $1,800 will be counsel's fee. The total of those figures is $12,300. Slater & Gordon has offered to accept $6,000 which in my view is a very significant reduction. However, it has been quite properly pointed out by Mr Maltz that the $12,300 does include an amount of between $1,000 and $1,500 which was incurred prior to the issue of the summons. There may be a question about whether that needs to be removed, but accepting for the moment it does, it would reduce the total amount to $11,000. Using a percentage of 75%, that would reduce the recoverable costs to $8,250. 5I have used 75% as the percentage because as a rule, as I understand it, on an assessment of costs, the usual reduction is in the order of 75% to 80%. I have taken the lower figure. Even if that lower figure is adopted, it far exceeds the offer made by the plaintiff of $6,000. 6In my view $6,000 is a reasonable figure and I would order that the $6,000 be paid to Slater & Gordon out of the fund which they currently hold. 7There is another matter that I should mention. The first and third defendants have made it clear that they are not happy with the manner in which the estate was handled by the plaintiff. They have complaints of different kinds in relation to the way in which matters were investigated and processed, and there may be issues about the fees charged. As I have made clear I am not dealing with that question today and that may have to be ventilated at some other time if agreement cannot be reached. All that I am dealing with is the costs of the application to pay moneys into court. In my view Slater & Gordon has had no alternative but to take the course it has taken due to the lack of agreement amongst the executors about what should and should not happen with the estate. 8I make orders in accordance with the short minutes of order initialled by me and dated with today's date. It is noted on those orders that Louis De Vos and Denise De Vos do not concede that the trust account amount is accurate.