Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11

Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11

Although the likely complexity and expense of costs assessment and the plaintiffs' financial inability to meet the liability would otherwise make the case appropriate for a gross sum costs order, the evidence relied on by NGC was insufficient to allow the court to make a reliable and fair quantification. The...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 February 2011
Procedural Posture
Application by Notice of Motion for a Gross Sum Costs Order Under S 98(4)(c) of the Civil Procedure Act 2005 (nsw) / Consequential Orders After an Order That the Plaintiffs Pay the Defendant's Costs of the Proceedings, Including the Cross Claim
Outcome
NGC's notice of motion filed on 25 November 2010 was dismissed with costs.
Legal Topics
['gross Sum Costs Order' 'costs Assessment' 'evidentiary Basis for Costs Quantification' 'impecuniosity of Costs Debtors']
['civil Procedure' 'costs'] ['gross Sum Costs Order' 'costs Assessment' 'evidentiary Basis for Costs Quantification' 'impecuniosity of Costs Debtors']

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Procedural Posture

Application by Notice of Motion for a Gross Sum Costs Order Under S 98(4)(c) of the Civil Procedure Act 2005 (nsw) / Consequential Orders After an Order That the Plaintiffs Pay the Defendant's Costs of the Proceedings, Including the Cross Claim

Legal Issues

  1. 1 ["Whether the court should order a specified gross sum for payment in satisfaction of the existing costs order in NGC's favour instead of assessed costs." 'If a gross sum costs order should be made, what sum should be ordered.' 'Whether the evidentiary material provided a sufficient basis for the court to fix a gross sum fairly between the parties.' "Whether the potential stultification of Mr Barr's intended appeal because of impecuniosity was a reason not to make a gross sum costs order."]

Ratio Decidendi

Although the likely complexity and expense of costs assessment and the plaintiffs' financial inability to meet the liability would otherwise make the case appropriate for a gross sum costs order, the evidence relied on by NGC was insufficient to allow the court to make a reliable and fair quantification. The spreadsheet summaries showed only dates and amounts, and the solicitor's evidence did not adequately demonstrate the basis of charging, the reasonableness of the work, the connection of all items to the proceedings, the effect of prior costs orders, or likely disallowances on assessment. The discretion to make a gross sum costs order was therefore not exercised.

Court Disposition

NGC's notice of motion filed on 25 November 2010 was dismissed with costs.

Orders

  • ["Narui Gold Coast Pty Ltd's notice of motion filed on 25 November 2010 is dismissed with costs."]