Wende v Horwath (NSW) Pty Limited (No 2) [2014] NSWDC 202

District Court New South Wales

Medium Neutral Citation: Wende v Horwath (NSW) Pty Limited (No 2) [2014] NSWDC 202 Hearing dates: 21 October 2014 Decision date: 23 October 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Order that the plaintiffs pay the defendant's costs of the District Court proceedings occurring after the Court of Appeal proceedings, up to the date of this judgment. (2) Order that the plaintiffs pay 80% of the defendant's costs of the District Court proceedings occurring before the Court of Appeal proceedings. (3) Stand over to a date to be notified by my associate the question of whether the amount of costs in orders 1 and 2 should be the subject of a lump sum order. (4) Order that the assessed costs of the Local Court, Supreme Court and Court of Appeal be determined by the District Court under s 384(2)(a) of the Legal Profession Act 2004 in accordance with the reasons of the assessor, Ms Dulhunty, and the Review Panel. (5) Stand over to a date to be notified by my associate the question of the quanta of those three determinations, in the absence of prior notification by the parties of agreement as to quanta. (6) Order the plaintiffs to pay the costs of the assessment in sum of $13,128.76 and the costs of the Review Panel in the sum of $5,818. (7) Stand over any other residual matters to a date to be notified by my associate. (8) List the matter for directions on Friday, 31 October 2014 at 10am before P Taylor SC DCJ. Catchwords: COSTS - assessment - Review Panel determination - set aside - remitted to District Court - effect of Court of Appeal decision - power of District Court to make costs assessment determinations - discretion - orders - costs of assessment - costs of the court Legislation Cited: Civil Procedure Act 2005, s 56 Legal Profession Act 2004, s 367, s 367A, s 368, s 369, s 375, s 378, s 382, s 384, s 389 Cases Cited: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 248 CLR 378 Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Wende v Horwath (NSW) Pty Limited [2013] NSWDC 10 Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 Windsurfing International Inc v Petit (1987) AIPC 90-441 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Consequential orders Parties: Herbert Wende (first plaintiff) Margaret Wende (second plaintiff) Mark Lloyd (third plaintiff) Horwath (NSW) Pty Limited (defendant) Representation: Mr M Green with Mr G E Babe (plaintiffs) Mr S F Hughes with Mr E James (defendant) Clear Lawyers (plaintiffs) Diamond Conway (defendant) File Number(s): 2012/48613 Publication restriction: None