Tam v Super Season Pty Ltd (No.2) [2023] NSWSC 460

Tam v Super Season Pty Ltd (No.2) [2023] NSWSC 460

Gross sum costs orders were warranted because the existing costs order against the VWA was on an indemnity basis, the VWA led no evidence that the plaintiff's or Super Season's claimed costs were unreasonable, the affidavits of the solicitors stating that the costs were thrown away or wasted were unchallenged, the invoices appeared reasonable and related to work that would need to be replicated for a future hearing, and the Court's own knowledge of the lengthy and complex hearing supported the reasonableness of the claims. The proposed discounts were not based on evidence or any binding NSW principle, and Cabo was not comparable because it concerned a different costs regime and an interim...

Jurisdiction
Australia
Judgment Date
05 May 2023
Procedural Posture
Application for Gross Sum Costs Orders Under S 98(4)(c) of the Civil Procedure Act 2005 (nsw) Following an Adjournment of Negligence Proceedings / Hearing of Notices of Motion Filed by the Plaintiff and First Defendant After an Indemnity Costs Order Had Been Made Against the Second Defendant
Outcome
Motions granted; gross sum costs orders made in favour of Super Season Pty Ltd and Ching Tam against the Victorian WorkCover Authority, with no discount applied, and costs payable forthwith.
Legal Topics
['gross Sum Costs Orders' 'indemnity Costs' 'costs Thrown Away by Adjournment' 'costs of Motions' 'section 98(4)(c) of the Civil Procedure Act 2005 (nsw)']
['civil Procedure' 'costs' 'negligence'] ['gross Sum Costs Orders' 'indemnity Costs' 'costs Thrown Away by Adjournment' 'costs of Motions' 'section 98(4)(c) of the Civil Procedure Act 2005 (nsw)']

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Procedural Posture

Application for Gross Sum Costs Orders Under S 98(4)(c) of the Civil Procedure Act 2005 (nsw) Following an Adjournment of Negligence Proceedings / Hearing of Notices of Motion Filed by the Plaintiff and First Defendant After an Indemnity Costs Order Had Been Made Against the Second Defendant

Legal Issues

  1. 1 ['Whether it was appropriate to make gross sum costs orders in favour of the plaintiff and the first defendant against the second defendant.' 'Whether any discount should be applied to the claimed costs on the basis that not all costs were wasted or thrown away.' 'Whether the second defendant should pay the costs of the motions seeking gross sum costs orders.']

Ratio Decidendi

Gross sum costs orders were warranted because the existing costs order against the VWA was on an indemnity basis, the VWA led no evidence that the plaintiff's or Super Season's claimed costs were unreasonable, the affidavits of the solicitors stating that the costs were thrown away or wasted were unchallenged, the invoices appeared reasonable and related to work that would need to be replicated for a future hearing, and the Court's own knowledge of the lengthy and complex hearing supported the reasonableness of the claims. The proposed discounts were not based on evidence or any binding NSW principle, and Cabo was not comparable because it concerned a different costs regime and an interim...

Court Disposition

Motions granted; gross sum costs orders made in favour of Super Season Pty Ltd and Ching Tam against the Victorian WorkCover Authority, with no discount applied, and costs payable forthwith.

Orders

  • ['Order that the Victorian WorkCover Authority pay the following sums by way of gross sum costs to Super Season Pty Ltd: in respect to the adjournment of the proceedings, $87,189.08; and in respect of the Notice of Motion filed 21 November 2022, $8,226.50.' 'Order that the Victorian Workcover Authority pay the...