Vardas v Coshott & Ors (No 2) [2017] NSWSC 425

Vardas v Coshott & Ors (No 2) [2017] NSWSC 425

Indemnity costs were warranted because the Coshotts filed the costs assessment application nine years after the Deed and 2007 Orders without notice, thereby compelling Mr Vardas to seek the Court's intervention, and then failed to cooperate or respond to correspondence during the litigation. A gross sum order was warranted because a further costs assessment would likely be protracted and disproportionate, the Coshotts' financial position was uncertain, and the evidence supported the reasonableness of the discounted gross sum of $60,000.

Jurisdiction
Australia
Judgment Date
19 April 2017
Procedural Posture
Final Relief and Costs; Motion for Indemnity Costs and Gross Sum Costs Order / After First Judgment Declaring Breach of Deed of Release and Restraining Further Steps in Costs Assessment
Outcome
Orders made for costs on an indemnity basis and for a gross sum costs order in the sum of $60,000.
Legal Topics
['indemnity Costs' 'gross Sum Costs Order' 'costs Assessment' 'discretion as to Costs' 'pre Litigation and Litigation Conduct']
['civil Procedure' 'costs' 'equity'] ['indemnity Costs' 'gross Sum Costs Order' 'costs Assessment' 'discretion as to Costs' 'pre Litigation and Litigation Conduct']

Case Brief

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Procedural Posture

Final Relief and Costs; Motion for Indemnity Costs and Gross Sum Costs Order / After First Judgment Declaring Breach of Deed of Release and Restraining Further Steps in Costs Assessment

Legal Issues

  1. 1 ["Whether the first and second defendants should pay the plaintiff's costs on an indemnity basis." 'Whether a specified gross sum costs order should be made under Civil Procedure Act 2005 (NSW), s 98(4)(c).' 'Whether costs claimed for affidavits prepared for interlocutory purposes should be included.' "Whether the Court had power to make orders concerning the costs assessor's costs."]

Ratio Decidendi

Indemnity costs were warranted because the Coshotts filed the costs assessment application nine years after the Deed and 2007 Orders without notice, thereby compelling Mr Vardas to seek the Court's intervention, and then failed to cooperate or respond to correspondence during the litigation. A gross sum order was warranted because a further costs assessment would likely be protracted and disproportionate, the Coshotts' financial position was uncertain, and the evidence supported the reasonableness of the discounted gross sum of $60,000.

Court Disposition

Orders made for costs on an indemnity basis and for a gross sum costs order in the sum of $60,000.

Orders

  • ["Order the first and second defendants pay the plaintiff's costs in the proceedings on the indemnity basis." 'Order that the first and second defendants pay the gross sum of $60,000 to the plaintiff instead of assessed costs.' 'Order the first and second defendants pay the gross sum for costs awarded in Order 2...