The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 4) [2018] NSWSC 1902

The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 4) [2018] NSWSC 1902

Because the earlier order required the Co Operative to pay all costs incurred by Sepak in preparing the evidence served on 3 October 2018, not merely costs thrown away, and because Mr Hemsworth's evidence provided a logical and careful basis for estimating those costs, a broad-brush gross sum was appropriate. Allowing for likely indemnity recovery below actual rendered costs and for contingencies, the proper specified amount was $70,000. The costs of the Co Operative's motion were ordered to be the defendants' costs in the cause because the leave granted was an indulgence and Sepak was already substantially compensated by the gross sum costs order.

Jurisdiction
Australia
Judgment Date
10 December 2018
Procedural Posture
Costs / On the Papers; Specification of Gross Sum Costs After Leave to Rely on Further Evidence
Outcome
Orders made specifying defendants' costs for preparing the evidence served on 3 October 2018 at $70,000 and making the costs of the plaintiff's notice of motion the defendants' costs in the cause.
Legal Topics
['party/party Costs' 'indemnity Costs' 'gross Sum Costs Order' 'costs in the Cause']
['civil Procedure' 'costs'] ['party/party Costs' 'indemnity Costs' 'gross Sum Costs Order' 'costs in the Cause']

Case Brief

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Procedural Posture

Costs / On the Papers; Specification of Gross Sum Costs After Leave to Rely on Further Evidence

Legal Issues

  1. 1 ["Whether the defendants' costs of preparing evidence served on 3 October 2018 should be specified as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW)." 'What gross sum should be specified for those costs on an indemnity basis.' "What order should be made for the costs of the plaintiff's notice of motion of 12 October 2018."]

Ratio Decidendi

Because the earlier order required the Co Operative to pay all costs incurred by Sepak in preparing the evidence served on 3 October 2018, not merely costs thrown away, and because Mr Hemsworth's evidence provided a logical and careful basis for estimating those costs, a broad-brush gross sum was appropriate. Allowing for likely indemnity recovery below actual rendered costs and for contingencies, the proper specified amount was $70,000. The costs of the Co Operative's motion were ordered to be the defendants' costs in the cause because the leave granted was an indulgence and Sepak was already substantially compensated by the gross sum costs order.

Court Disposition

Orders made specifying defendants' costs for preparing the evidence served on 3 October 2018 at $70,000 and making the costs of the plaintiff's notice of motion the defendants' costs in the cause.

Orders

  • ['Order pursuant to s 98(4) of the Civil Procedure Act that the costs of the defendants preparing the evidence served on 3 October 2018 be specified at $70,000.' "Order that the costs of the plaintiff's notice of motion of 12 October 2018 be the defendants' costs in the cause."]