In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162

In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162

A gross sum indemnity costs order was appropriate because the amount sought was reasonable, Mr Sebie and Mr Jemmott had served voluminous evidence and made detailed or lengthy submissions, a reasonable pre-hearing offer involving compromise was not accepted, and their subsequent steps to obtain similar relief supported the view that a costs assessment process would be delayed or frustrated.

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Costs Application / Costs Determination Following Refusal of Notice of Motion for Stay of Execution of Writ of Possession and Refusal of Joinder Application; Proposed Amended Notice of Motion Not Filed
Outcome
Costs of the notice of motion heard on 6 January 2023 awarded against Ronald Jemmott and Robert Sebie on an indemnity basis, fixed in a gross sum; costs of the proposed amended notice of motion to be paid by the applicant on that proposed motion.
Legal Topics
['gross Sum Costs Order' 'indemnity Costs' 'stay of Execution of Writ of Possession' 'costs of Proposed Amended Notice of Motion']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'indemnity Costs' 'stay of Execution of Writ of Possession' 'costs of Proposed Amended Notice of Motion']

Case Brief

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Procedural Posture

Costs Application / Costs Determination Following Refusal of Notice of Motion for Stay of Execution of Writ of Possession and Refusal of Joinder Application; Proposed Amended Notice of Motion Not Filed

Legal Issues

  1. 1 ['Whether the costs of the notice of motion heard on 6 January 2023 should be paid by Ronald Jemmott and Robert Sebie on an indemnity basis and fixed in a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' 'Whether the costs in relation to the proposed amended notice of motion dated 19 January 2023 should be paid by the applicant on that proposed amended notice of motion.']

Ratio Decidendi

A gross sum indemnity costs order was appropriate because the amount sought was reasonable, Mr Sebie and Mr Jemmott had served voluminous evidence and made detailed or lengthy submissions, a reasonable pre-hearing offer involving compromise was not accepted, and their subsequent steps to obtain similar relief supported the view that a costs assessment process would be delayed or frustrated.

Court Disposition

Costs of the notice of motion heard on 6 January 2023 awarded against Ronald Jemmott and Robert Sebie on an indemnity basis, fixed in a gross sum; costs of the proposed amended notice of motion to be paid by the applicant on that proposed motion.

Orders

  • ['Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the costs of the notice of motion heard on 6 January 2023 are to be paid by Ronald Jemmott and Robert Sebie, as assessed on an indemnity basis, fixed in a gross sum of $27,899;' 'The costs in relation to the proposed amended notice of motion dated 19...