In the matter of Beverage Freight Services Pty Ltd [2020] NSWSC 797

In the matter of Beverage Freight Services Pty Ltd [2020] NSWSC 797

A gross sum costs order should be made because the earlier Costs Order contemplated that course, the Defendants had suffered prejudice from the Plaintiffs' discovery non-compliance, a costs assessment would add delay and expense, and the available material, including the Plaintiffs' costs assessor's report, enabled the Court to do justice between the parties. The claimed costs largely fell within the Costs Order because they were incurred in responding to the Plaintiffs' failure to give proper discovery and in addressing whether the proceedings should be dismissed. Some identified items were outside scope or not pressed and were excluded. A 10% discount to solicitors' costs, but not a...

Jurisdiction
Australia
Judgment Date
24 June 2020
Procedural Posture
Equity Corporations List; Costs Application for a Gross Sum Costs Order / Interlocutory Process by the Defendants Seeking That Costs Payable Under the Earlier Indemnity Costs Order Be Payable as a Specified Gross Sum Instead of by Assessment
Outcome
Gross sum costs order to include the Defendants' claimed amounts with specified exclusions and a 10% discount applied to solicitors' fees; parties directed to submit agreed or competing short minutes of order to give effect to the judgment.
Legal Topics
['gross Sum Costs Order' 'indemnity Costs' 'wasted Costs' 'discovery Non Compliance' 'expert Evidence on Costs' 'discount on Gross Sum Costs']
['civil Procedure' 'costs' 'evidence'] ['gross Sum Costs Order' 'indemnity Costs' 'wasted Costs' 'discovery Non Compliance' 'expert Evidence on Costs' 'discount on Gross Sum Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Corporations List; Costs Application for a Gross Sum Costs Order / Interlocutory Process by the Defendants Seeking That Costs Payable Under the Earlier Indemnity Costs Order Be Payable as a Specified Gross Sum Instead of by Assessment

Legal Issues

  1. 1 ['Whether the Court should make a gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW).' "Whether the Plaintiffs could rely on the costs assessor's expert report without leave and whether it was admissible." "Whether particular solicitors' costs, counsel's fees, accounting expert fees and disbursements fell within the scope of the earlier Costs Order." 'What, if any, discount should be applied in fixing costs on a gross sum basis.']

Ratio Decidendi

A gross sum costs order should be made because the earlier Costs Order contemplated that course, the Defendants had suffered prejudice from the Plaintiffs' discovery non-compliance, a costs assessment would add delay and expense, and the available material, including the Plaintiffs' costs assessor's report, enabled the Court to do justice between the parties. The claimed costs largely fell within the Costs Order because they were incurred in responding to the Plaintiffs' failure to give proper discovery and in addressing whether the proceedings should be dismissed. Some identified items were outside scope or not pressed and were excluded. A 10% discount to solicitors' costs, but not a...

Court Disposition

Gross sum costs order to include the Defendants' claimed amounts with specified exclusions and a 10% discount applied to solicitors' fees; parties directed to submit agreed or competing short minutes of order to give effect to the judgment.

Orders

  • ["The parties are to recalculate the costs on the basis of a discount of 10% to the solicitors' costs quantified in Mr Grossman's affidavit after excluding items 1-3 and 195 in Appendix 7 to Mr Taylor's report." "The recalculation is to include the costs claimed for Ms Dolenec's fees, except $2,100 referable to the...