Huang v Drumm (No. 2) [2018] NSWSC 1853

Huang v Drumm (No. 2) [2018] NSWSC 1853

A gross sum costs order was appropriate because the costs of the Local Court proceedings and this Court proceedings were disproportionate to the amount in issue, the plaintiff's conduct caused unnecessary costs and indicated that a costs assessment would likely be lengthy, expensive and drawn out, significant earlier costs liabilities remained unpaid, the evidence suggested the plaintiff had few assets to meet costs orders, and the Court had sufficient material from the defendant's solicitor to fix party/party costs fairly. Applying a 25% discount to solicitors' costs and adding counsel's fees and disbursements justified a gross sum order of $35,000.

Jurisdiction
Australia
Judgment Date
05 December 2018
Procedural Posture
Costs Application Following Dismissal of Amended Summons/appeal From Local Court / Determined on the Papers After Judgment on 27 August 2018
Outcome
Costs order made on 27 August 2018 varied; plaintiff ordered to pay defendant's costs as a gross sum.
Legal Topics
['gross Sum Costs Order' 'party/party Costs' 'costs Assessment' 'proportionality of Costs' 'unpaid Costs Orders' 'impecuniosity']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'party/party Costs' 'costs Assessment' 'proportionality of Costs' 'unpaid Costs Orders' 'impecuniosity']

Case Brief

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Procedural Posture

Costs Application Following Dismissal of Amended Summons/appeal From Local Court / Determined on the Papers After Judgment on 27 August 2018

Legal Issues

  1. 1 ['Whether it was appropriate to vary the earlier costs order by making a specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) instead of leaving costs to assessment.' 'Whether the Court could fairly and confidently fix the amount of party/party costs on the material before it.' "What discount should be applied to the defendant's established costs when fixing a gross sum costs order."]

Ratio Decidendi

A gross sum costs order was appropriate because the costs of the Local Court proceedings and this Court proceedings were disproportionate to the amount in issue, the plaintiff's conduct caused unnecessary costs and indicated that a costs assessment would likely be lengthy, expensive and drawn out, significant earlier costs liabilities remained unpaid, the evidence suggested the plaintiff had few assets to meet costs orders, and the Court had sufficient material from the defendant's solicitor to fix party/party costs fairly. Applying a 25% discount to solicitors' costs and adding counsel's fees and disbursements justified a gross sum order of $35,000.

Court Disposition

Costs order made on 27 August 2018 varied; plaintiff ordered to pay defendant's costs as a gross sum.

Orders

  • ['I vary the costs order made by me on 27 August 2018 as follows:' "The plaintiff is to pay the defendant's costs in the sum of $35,000."]