De Rucci International Pty Ltd v Zhu and others (Costs) [2021] NSWSC 1119

De Rucci International Pty Ltd v Zhu and others (Costs) [2021] NSWSC 1119

A gross sum costs order was warranted because the plaintiff's claimed sum was supported by evidence, incorporated a modest discount, the defendants had not paid the judgment debt or previous costs orders so recovery of formal assessment costs was likely limited, and the amended motion needlessly caused costs by seeking in substance to revisit a previous decision without evidence of a material change in circumstances while appellate proceedings were on foot.

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Costs Application for a Gross Sum Costs Order Following Dismissal of an Amended Notice of Motion Seeking a Stay of Enforcement / On the Papers After the Court Dismissed the Amended Stay Motion and Ordered Costs Against the Defendants on the Usual Basis, Subject to Any Application by the Plaintiff for a Different Order
Outcome
Application for a gross sum costs order granted; prior costs order vacated and replaced with an order that the defendants pay the plaintiff $13,000.
Legal Topics
['gross Sum Costs Order' 'stay of Enforcement' 'costs Assessment' 'discretion to Award Costs' 'relitigation of Determined Application']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'stay of Enforcement' 'costs Assessment' 'discretion to Award Costs' 'relitigation of Determined Application']

Case Brief

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Procedural Posture

Costs Application for a Gross Sum Costs Order Following Dismissal of an Amended Notice of Motion Seeking a Stay of Enforcement / On the Papers After the Court Dismissed the Amended Stay Motion and Ordered Costs Against the Defendants on the Usual Basis, Subject to Any Application by the Plaintiff for a Different Order

Legal Issues

  1. 1 ['Whether Order 2 of 15 June 2021 for costs on the usual basis should be vacated and replaced with a gross sum costs order.' "Whether a gross sum order of $13,000 was justified having regard to the evidence of costs incurred, the discount applied, the likely costs of assessment, prospects of recovery, and the defendants' conduct in bringing the amended stay motion."]

Ratio Decidendi

A gross sum costs order was warranted because the plaintiff's claimed sum was supported by evidence, incorporated a modest discount, the defendants had not paid the judgment debt or previous costs orders so recovery of formal assessment costs was likely limited, and the amended motion needlessly caused costs by seeking in substance to revisit a previous decision without evidence of a material change in circumstances while appellate proceedings were on foot.

Court Disposition

Application for a gross sum costs order granted; prior costs order vacated and replaced with an order that the defendants pay the plaintiff $13,000.

Orders

  • ['Order 2 of 15 June 2021 is vacated.' 'In lieu, the defendants are to pay the plaintiff a gross sum of $13,000 as costs of the proceedings with respect to the Amended Notice of Motion filed on 26 May 2021.']