Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062

A gross sum costs order was appropriate because assessing the defendants' legal costs would impose further time and expense in circumstances where it was unclear whether the plaintiffs could pay the costs order at all. Applying a broad, logical, fair and reasonable assessment of the evidence, and excluding senior counsel's cancellation fee because no contractual obligation to pay it existed when the costs order was made and because such fees should not fairly be passed to another party, the Court fixed $35,000 exclusive of GST for Bass Finance and $35,000 exclusive of GST for the broker.

Jurisdiction
Australia
Judgment Date
08 August 2022
Procedural Posture
Application by the Defendants for a Gross Sum Costs Order / On the Papers; Final Submissions Received 22 July 2022
Outcome
Gross sum costs awarded.
Legal Topics
['gross Sum Costs Order' 'costs Thrown Away' 'vacation of Trial' 'late Amendment to Pleadings' "counsel's Cancellation Fee" 'civil Procedure Act 2005 (nsw), S 98(4)(c)']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'costs Thrown Away' 'vacation of Trial' 'late Amendment to Pleadings' "counsel's Cancellation Fee" 'civil Procedure Act 2005 (nsw), S 98(4)(c)']

Case Brief

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Procedural Posture

Application by the Defendants for a Gross Sum Costs Order / On the Papers; Final Submissions Received 22 July 2022

Legal Issues

  1. 1 ['Whether it was appropriate to make a gross sum costs order instead of putting the defendants to costs assessment.' "What specified gross sum should be fixed for Bass Finance's costs of the motion and costs thrown away by the vacation of the hearing." "What specified gross sum should be fixed for the finance broker's costs of the motion, costs thrown away by the amendments, and costs thrown away by the vacation of the trial." "Whether senior counsel's cancellation fee should be included in Bass Finance's recoverable gross sum costs."]

Ratio Decidendi

A gross sum costs order was appropriate because assessing the defendants' legal costs would impose further time and expense in circumstances where it was unclear whether the plaintiffs could pay the costs order at all. Applying a broad, logical, fair and reasonable assessment of the evidence, and excluding senior counsel's cancellation fee because no contractual obligation to pay it existed when the costs order was made and because such fees should not fairly be passed to another party, the Court fixed $35,000 exclusive of GST for Bass Finance and $35,000 exclusive of GST for the broker.

Court Disposition

Gross sum costs awarded.

Orders

  • ['Order pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the first defendant is to be entitled to a specified gross sum in the amount of $35,000 (exclusive of GST) in respect of the costs order made on 17 June 2022.' 'Order pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW)...