In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 1070

In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2022] NSWSC 1070

The defendant failed to place before the Court sufficient material to allow for a fair and logical determination of an appropriate specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW); therefore, costs are to be assessed on the ordinary basis. There is no basis to order indemnity costs for the defence of paragraph 51A, as it was not unreasonable of the plaintiffs to pursue or maintain that allegation. The costs of the March 2021 interlocutory hearing are to be allocated specifically according to the parties’ respective success and conduct regarding privilege claims. Costs of the costs applications are to follow the event, in favour of the plaintiffs.

Jurisdiction
Australia
Judgment Date
10 August 2022
Procedural Posture
Costs Application / Post Judgment/after Principal Decision
Outcome
Application for specified gross sum costs order and indemnity costs dismissed; orders as to costs made
Legal Topics
['gross Sum Costs Order' 'indemnity Costs' 'assessment of Costs' 'costs of Interlocutory Applications']
['civil Procedure' 'costs'] ['gross Sum Costs Order' 'indemnity Costs' 'assessment of Costs' 'costs of Interlocutory Applications']

Case Brief

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Procedural Posture

Costs Application / Post Judgment/after Principal Decision

Legal Issues

  1. 1 ['Whether to order a specified gross sum for costs under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)' 'Whether indemnity costs should be ordered in respect of paragraph 51A of the points of claim' 'How costs of the March 2021 interlocutory application should be allocated' 'Who should bear costs of the costs applications']

Ratio Decidendi

The defendant failed to place before the Court sufficient material to allow for a fair and logical determination of an appropriate specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW); therefore, costs are to be assessed on the ordinary basis. There is no basis to order indemnity costs for the defence of paragraph 51A, as it was not unreasonable of the plaintiffs to pursue or maintain that allegation. The costs of the March 2021 interlocutory hearing are to be allocated specifically according to the parties’ respective success and conduct regarding privilege claims. Costs of the costs applications are to follow the event, in favour of the plaintiffs.

Court Disposition

Application for specified gross sum costs order and indemnity costs dismissed; orders as to costs made

Orders

  • ["Plaintiffs are to pay the defendant's costs of the proceedings on the ordinary basis as agreed or assessed, except as specified in these orders or prior specific orders." 'In relation to the defendant’s interlocutory process filed 8 March 2021 and heard 15 March 2021: defendant to pay plaintiffs’ costs incurred in...