Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho [2023] NSWSC 954

Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho [2023] NSWSC 954

Because Mr Fordyce was unsuccessful and did not contend that he should not pay the defendants' costs, and because the history of the litigation was prolonged, protracted and tortuous, a gross sum costs order was appropriate to achieve a just, quick and cheap resolution. Mr Fordyce's allegations about past micromanagement did not reliably inform the discrete costs application and amounted to an attempt to re-litigate matters dealt with in the principal costs assessments. The defendants' supporting material was fair, logical and reasonable, but the Court allowed a gross sum of $35,000 including GST rather than the higher amount sought.

Jurisdiction
Australia
Judgment Date
16 August 2023
Procedural Posture
Costs Application / On the Papers Following Decision of the Principal Proceedings
Outcome
Application for a gross sum costs order granted.
Legal Topics
['gross Sum Costs Order' 'costs Assessment' 'specified Gross Sum Instead of Assessed Costs' 'just, Quick and Cheap Resolution of Proceedings']
['civil Procedure' 'costs'] ['gross Sum Costs Order' 'costs Assessment' 'specified Gross Sum Instead of Assessed Costs' 'just, Quick and Cheap Resolution of Proceedings']

Case Brief

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Procedural Posture

Costs Application / On the Papers Following Decision of the Principal Proceedings

Legal Issues

  1. 1 ['Whether the defendants should have their costs of the proceedings before Harrison J paid by Mr Fordyce.' 'Whether the Court should make a specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 instead of leaving costs to assessment.' "What gross sum should be allowed for the defendants' costs."]

Ratio Decidendi

Because Mr Fordyce was unsuccessful and did not contend that he should not pay the defendants' costs, and because the history of the litigation was prolonged, protracted and tortuous, a gross sum costs order was appropriate to achieve a just, quick and cheap resolution. Mr Fordyce's allegations about past micromanagement did not reliably inform the discrete costs application and amounted to an attempt to re-litigate matters dealt with in the principal costs assessments. The defendants' supporting material was fair, logical and reasonable, but the Court allowed a gross sum of $35,000 including GST rather than the higher amount sought.

Court Disposition

Application for a gross sum costs order granted.

Orders

  • ["Order Mr Fordyce to pay the defendants' costs of the proceedings before me." 'Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 that the defendants be paid the costs referred to in Order (1) in the specified gross sum amount of $35,000 including GST.']