Uber BV & Anor v Howarth (No. 2) [2017] NSWSC 889

Uber BV & Anor v Howarth (No. 2) [2017] NSWSC 889

Because the defendant had been served, was aware of the hearing, was an undischarged bankrupt and apparently impecunious, and any costs assessment was likely to be protracted and create further unrecoverable expense for the successful plaintiffs, this was an apt case for a specified gross sum costs order under Civil Procedure Act 2005 s 98(4)(c). The amount of $391,152.27 was fair and appropriate because it was below 60% of the plaintiffs' incurred costs, below the ordinary two-thirds to three-quarters recovery range identified in evidence, less than counsel's fees alone, and did not include the costs of the motion itself.

Jurisdiction
Australia
Judgment Date
04 July 2017
Procedural Posture
Costs Motion for a Specified Gross Sum Instead of Assessed Costs / After Final Judgment Granting a Permanent Injunction and Ordering the Defendant to Pay the Plaintiffs' Costs, the Plaintiffs' 27 April 2017 Motion Under Civil Procedure Act 2005 S 98(4)(c) Was Heard and Determined on 4 July 2017.
Outcome
Specified gross sum of $391,152.27 awarded instead of assessed costs.
Legal Topics
['specified Gross Sum Costs Order' 'civil Procedure Act 2005 S 98(4)(c)' 'costs Assessment' 'impecuniosity' 'undischarged Bankrupt' 'mandatory Injunction' 'tort of Intimidation']
['civil Procedure' 'costs' 'equity'] ['specified Gross Sum Costs Order' 'civil Procedure Act 2005 S 98(4)(c)' 'costs Assessment' 'impecuniosity' 'undischarged Bankrupt' 'mandatory Injunction' 'tort of Intimidation']

Case Brief

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Procedural Posture

Costs Motion for a Specified Gross Sum Instead of Assessed Costs / After Final Judgment Granting a Permanent Injunction and Ordering the Defendant to Pay the Plaintiffs' Costs, the Plaintiffs' 27 April 2017 Motion Under Civil Procedure Act 2005 S 98(4)(c) Was Heard and Determined on 4 July 2017.

Legal Issues

  1. 1 ["Whether the defendant had been served with the plaintiffs' motion and supporting material and was aware of the hearing date." 'Whether the Court should order payment of a specified gross sum instead of assessed costs under Civil Procedure Act 2005 s 98(4)(c).' "Whether the defendant's bankruptcy, apparent impecuniosity and likely conduct of any costs assessment made a costs assessment likely to cause further unrecoverable expense, delay and aggravation to the plaintiffs." 'What amount was fair and appropriate as the specified gross sum.']

Ratio Decidendi

Because the defendant had been served, was aware of the hearing, was an undischarged bankrupt and apparently impecunious, and any costs assessment was likely to be protracted and create further unrecoverable expense for the successful plaintiffs, this was an apt case for a specified gross sum costs order under Civil Procedure Act 2005 s 98(4)(c). The amount of $391,152.27 was fair and appropriate because it was below 60% of the plaintiffs' incurred costs, below the ordinary two-thirds to three-quarters recovery range identified in evidence, less than counsel's fees alone, and did not include the costs of the motion itself.

Court Disposition

Specified gross sum of $391,152.27 awarded instead of assessed costs.

Orders

  • ['Order the defendant pay the plaintiffs a specified gross sum in the amount of $391,152.27 instead of the referral for assessment of the costs ordered in Order 3 made on 3 April 2017.']