Poulos v Eberstaller (No 2) [2014] NSWSC 235

Supreme Court New South Wales

Medium Neutral Citation: Poulos v Eberstaller (No 2) [2014] NSWSC 235 Decision date: 17 March 2014 Before: Pembroke J Decision: See paragraph [13] Catchwords: COSTS - gross fixed sum costs order Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Cases Cited: Poulos v Eberstaller [2013] NSWSC 1849 Category: Costs Parties: Lisa Ann Poulos - plaintiff Hans Richard Eberstaller - first defendant Premjit Singh - second defendant Representation: Counsel: K P Tang - for the plaintiff R Gorszyca - (solicitor) for the first defendant No appearance for the second defendant Solicitors: Allygroup - for the plaintiff Bruce & Stewart Lawyers - for the first defendant No appearance for the second defendant File Number(s): 2013/245442

Judgment

Introduction 1On 12 December 2013 in Poulos v Eberstaller [2013] NSWSC 1849, I said at [45]: The first and second defendants should pay the plaintiff's costs. They should be severally liable. If so advised, I will entertain an application by the plaintiff for a special costs order, if there are grounds for doing so. This is an appropriate case for a fixed lump sum costs order: see Ireland v Retallack (No 2) [2011] NSWSC 1096 at [38] - [44]. In the circumstances of this case and given the relationship between husband and wife, and particularly having regard to the conduct of the first defendant which I have explained at length above, including his predilection for disputation, it is not in the interests of justice that the plaintiff be subjected to a lengthy contested costs assessment. I am in a better position than a costs assessor to undertake an assessment. The parties should agree on directions for a time-table for written submissions and any evidence on the amount of an appropriate assessment of the plaintiff's costs of these proceedings. 2The plaintiff duly obtained a report from a highly experienced costs consultant, Peta Solomon, who concluded that in her opinion the 'likely recovery of costs' [by the plaintiff] 'should the matter proceed to assessment on an ordinary basis' was $148,278.78. There was no competing expert evidence, no cross-examination of Ms Solomon and no direct challenge to her evidence. 3However the first defendant contended that only approximately $45,000 should be allowed to the plaintiff. His principal arguments were as follows. He submitted that these proceedings are a 'matrimonial cause' and that the court is exercising jurisdiction under the Family Law Act 1975 (Cth). It followed, he submitted, that the Family Law Rules 2004 (Cth) governed any question of costs and that consequently each party should pay his or her own costs. Alternatively, he submitted that the scale of costs in the Family Court of Australia should apply to these proceedings. In further alternative, he contended that due to wastage and duplication, not all of the costs which are the subject of Ms Solomon's report, should be allowed. He does not oppose the making of a lump sum costs order. The only issue is the amount.