Megna v Marshall [2012] NSWSC 436

Supreme Court New South Wales

Medium Neutral Citation: Megna v Marshall [2012] NSWSC 436 Hearing dates: 2 May 2012 Decision date: 03 May 2012 Jurisdiction: Common Law Before: Harrison J Decision: Direct that the orders made by Fullerton J on 4 December 2007 be varied in terms of short minutes of order dated 3 May 2012. Catchwords: COSTS - security for costs - application to vary freezing order Category: Interlocutory applications Parties: Michael Megna (First Plaintiff) Russell James Lloyd (Second Plaintiff) David John Marshall (First Defendant) Richard Martin Tory (Second Defendant) Representation: T Molomby SC with R K M Rasmussen (Plaintiffs) A T Dawson (Second Defendant) Etheringtons (Plaintiffs) Horowitz & Bilinsky (First Defendant) Bricknell Legal (Second Defendant) File Number(s): 2004/181254

Judgment 1HIS HONOUR: These proceedings have a long history. For presently relevant purposes they are listed for a hearing in the Court of Appeal commencing on 31 May 2012 with an estimate of two days. 2By his notice of motion filed in Court on 2 May 2012, Mr Tory seeks orders permitting him to have access to certain assets that are currently the subject of freezing orders for two nominated purposes. First, to enable him to provide $62,000 as security for costs in accordance with an order made by the Court of Appeal that he do so: see [2012] NSWCA 41. Secondly, to provide him with funds from which to pay for his legal representation in the Court of Appeal. The plaintiffs quite understandably do not oppose the first order. They do oppose the second order but only in part: Mr Tory seeks the release of $113,580 whereas the plaintiffs are prepared only to agree to the release of $40,000. 3The proceedings relate to a claim for damages for defamation commenced by the plaintiffs in early 2005. A separate trial of the issues reserved to a jury under s 7A of the Defamation Act 1974 lasted 15 days in September 2005. Mr Tory appealed against the jury verdict. That appeal was heard on 25 October 2006 and decided on 19 February 2007. The appeal was dismissed. 4Simpson J heard the proceedings dealing with defences and damages in an interrupted hearing over 11 days commencing on 18 February 2008 and concluding on 3 December 2009. Judgment was delivered on 25 June 2010. Her Honour awarded damages against both defendants in the sum of $395,000 to the first plaintiff and $220,000 to the second plaintiff. 5Mr Marshall appealed. He was legally represented until approximately January 2012 but now appears for himself. Mr Tory originally filed a submitting appearance but was recently given leave to withdraw that appearance by Young JA on 12 March 2012 upon certain conditions. One of those conditions was that within 21 days of 12 March 2012 he provide $62,000 as security for costs, as earlier discussed. That has not yet occurred. 6Mr Tory and his wife and brother are currently bound by the terms of freezing orders made by Fullerton J on 4 December 2007. Hoeben J subsequently varied these orders on 29 October 2009. 7Mr Tory is one of two beneficiaries in the estate of the late Stella Tory. In an affidavit sworn on 27 April 2012, Danny Wayne Bricknell deposes to the existence of assets in that estate to the total approximate value of a little over $300,000. Mr Bricknell estimates that Mr Tory's legal costs for the conduct of the upcoming appeal to the Court of Appeal will be $113,580. The way that that sum is calculated, and the description of the individual items of work to which it relates, are set forth in comprehensive detail in Mr Bricknell's affidavit. 8Mr Tory has not sworn an affidavit himself in support of his application. In particular, he does not give evidence that he has no other assets or funds from which either of the amounts required for provision of the security for costs or for payment of his legal expenses could be drawn. The freezing orders that are in place only restrict Mr Tory's utilisation of or access to five named properties described in order 1 of the orders made by Fullerton J on 4 December 2007 and the assets of the deceased estate of Stella Story described in order 2. 9The material available to me does not permit an accurate or reliable assessment of the value of the five properties. Moreover, they are currently registered in the name of third parties. The prospect that they will or can be considered to be assets in which Mr Tory has an interest is apparently or at least potentially subject to the uncertainty of litigation concerning the propriety of the circumstances in which the current registered proprietors acquired their interests. It is therefore not possible to treat those properties as assets to which the plaintiffs will certainly have access for the payment of their damages and costs if they ultimately succeed. 10I am constrained in such circumstances to approach the present contest with a degree of circumspection. I consider that the sum sought by Mr Tory for his costs is excessive. I must say that I would have formed that view in any event, having regard to the fact that the hearing in the Court of Appeal is scheduled to occupy no more than two days. The plaintiff's estimate of $40,000 is far more accurate an assessment of the proper costs required for the preparation and presentation of Mr Tory's case in the Court of Appeal. Adopting the hourly and daily rates employed by Mr Bricknell, I consider that a sum of $46,390 should be released, made up as follows: Counsel's fees - two days at $4,290 per day $8,580 Preparation by counsel - two days at $4,290 per day $8,580 Additional appearances by counsel $4,290 Solicitor's fees and expenses, attendance at court and preparation - Court of Appeal $15,840 Solicitor's incidental attendances $4,400 Court filing fee $2,850 Court of Appeal hearing fee $1,850 Total $46,390