Wet Fix Holding Pty Ltd v Mark Sean Smith and Anor [2023] NSWSC 924

Wet Fix Holding Pty Ltd v Mark Sean Smith and Anor [2023] NSWSC 924

A gross sum costs order was warranted because there was no theoretical or practical bar to determining the remaining costs issues, WFH's conduct and apparent ability to comply with costs orders made further costs assessment potentially futile, the protracted history suggested costs assessment would also be protracted, the respondent's resistance appeared likely to be ill-founded and protracted, the matter was sufficiently straightforward for a direct costs resolution, and the applicant's solicitor's affidavit allowed a fair and informed assessment of quantum after applying a 15% discount.

Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Application for Gross Sum Costs Order / On the Papers After Substantive Proceedings Dismissed Against the Second Defendant
Outcome
Gross sum costs order made in favour of the applicant in the sum of $49,340.
Legal Topics
['gross Sum Costs Order' 'security for Costs' 'costs Assessment' 'ordinary Basis Costs']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'security for Costs' 'costs Assessment' 'ordinary Basis Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Gross Sum Costs Order / On the Papers After Substantive Proceedings Dismissed Against the Second Defendant

Legal Issues

  1. 1 ['Whether the Court should make a gross sum costs order in favour of the second defendant for the two hearing days before Button J and remaining aspects of the substantive matter.' 'Whether the Court could determine outstanding costs of the substantive matter beyond the two hearing days directly before Button J.' 'What amount should be ordered as a gross sum for costs.']

Ratio Decidendi

A gross sum costs order was warranted because there was no theoretical or practical bar to determining the remaining costs issues, WFH's conduct and apparent ability to comply with costs orders made further costs assessment potentially futile, the protracted history suggested costs assessment would also be protracted, the respondent's resistance appeared likely to be ill-founded and protracted, the matter was sufficiently straightforward for a direct costs resolution, and the applicant's solicitor's affidavit allowed a fair and informed assessment of quantum after applying a 15% discount.

Court Disposition

Gross sum costs order made in favour of the applicant in the sum of $49,340.

Orders

  • ['The plaintiff must pay the costs of the second defendant pertaining to the two hearing days before me, and remaining aspects of the substantive matter, on the ordinary basis.' 'The plaintiff must pay the costs of the second defendant in the sum of $49,340, in accordance with a gross sum costs order pursuant to s...