Bailey v O’Dea [2021] NSWSC 1420

Bailey v O’Dea [2021] NSWSC 1420

The plaintiffs' costs had not been referred for assessment, so s 98(4)(c) was available. The defendant's prior non-compliance with directions, lack of cogent explanation, termination of his solicitor's retainer, interruptions and repeated attempts to renew refused applications created a substantial risk that a costs assessment would become unnecessarily complex, lengthy and costly relative to the modest amount claimed. Mr Hadley's evidence established the actual costs incurred and enabled a logical, fair and reasonable estimate of the amount likely to be recovered on assessment. Although an assessment would likely yield about $42,069.23 including GST, the Court rounded the amount down to...

Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Costs Application for a Specified Gross Sum Costs Order / On the Papers After Final Orders and a Costs Order in Favour of the Plaintiffs
Outcome
Gross sum costs order made in favour of the plaintiffs in the sum of $40,000 including GST.
Legal Topics
['specified Gross Sum Costs Order' 'costs Assessment' 'trustees for Sale' 'undefended Proceedings']
['costs' 'civil Procedure' 'equity'] ['specified Gross Sum Costs Order' 'costs Assessment' 'trustees for Sale' 'undefended Proceedings']

Case Brief

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Procedural Posture

Costs Application for a Specified Gross Sum Costs Order / On the Papers After Final Orders and a Costs Order in Favour of the Plaintiffs

Legal Issues

  1. 1 ['Whether the Court should order that the plaintiffs are entitled to a specified gross sum instead of assessed costs under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' 'Whether the evidence enabled the Court to make a logical, fair and reasonable estimate of the costs likely to be recovered on assessment.']

Ratio Decidendi

The plaintiffs' costs had not been referred for assessment, so s 98(4)(c) was available. The defendant's prior non-compliance with directions, lack of cogent explanation, termination of his solicitor's retainer, interruptions and repeated attempts to renew refused applications created a substantial risk that a costs assessment would become unnecessarily complex, lengthy and costly relative to the modest amount claimed. Mr Hadley's evidence established the actual costs incurred and enabled a logical, fair and reasonable estimate of the amount likely to be recovered on assessment. Although an assessment would likely yield about $42,069.23 including GST, the Court rounded the amount down to...

Court Disposition

Gross sum costs order made in favour of the plaintiffs in the sum of $40,000 including GST.

Orders

  • ['Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiffs are entitled to the gross sum of $40,000 including GST instead of assessed costs in relation to the costs order made in their favour on 20 September 2021.']