UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2018] NSWSC 1376

UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2018] NSWSC 1376

The plaintiff's unexplained failure to have its case ready for a hearing listed more than two years after proceedings commenced, its application to vacate the hearing only four weeks before trial, and its late indication that it would not rely on Mr Goodyer's report unnecessarily contributed to the defendant's costs. That conduct was sufficiently egregious to justify a specified gross sum costs order under s 98(4)(c), with a limited reduction for excessive charges for non-solicitor staff. Given the plaintiff's past unpaid costs liability, the proceedings should be stayed if the gross sum is not paid within 28 days.

Jurisdiction
Australia
Judgment Date
06 September 2018
Procedural Posture
Costs Application in Equity Proceedings / Notice of Motion Filed by the Defendant Seeking Costs in a Specified Gross Sum and a Stay If Payment Is Not Made
Outcome
Defendant's motion granted in part; costs ordered in a specified gross sum and proceedings to be stayed on non-payment within 28 days.
Legal Topics
['specified Gross Sum Costs Order' 'indemnity Costs' 'vacation of Hearing Dates' 'costs Assessment' 'stay of Proceedings for Non Payment of Costs']
['civil Procedure' 'costs'] ['specified Gross Sum Costs Order' 'indemnity Costs' 'vacation of Hearing Dates' 'costs Assessment' 'stay of Proceedings for Non Payment of Costs']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Notice of Motion Filed by the Defendant Seeking Costs in a Specified Gross Sum and a Stay If Payment Is Not Made

Legal Issues

  1. 1 ['Whether the costs payable by the plaintiff to the defendant pursuant to earlier costs orders and the present motion should be awarded in a specified gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' "Whether the plaintiff's conduct in failing to have the matter ready for hearing and applying late to vacate the hearing justified avoiding the ordinary costs assessment process." "What gross sum should be awarded for the defendant's costs." 'Whether the proceedings should be stayed if the plaintiff does not pay the specified gross sum within 28 days.']

Ratio Decidendi

The plaintiff's unexplained failure to have its case ready for a hearing listed more than two years after proceedings commenced, its application to vacate the hearing only four weeks before trial, and its late indication that it would not rely on Mr Goodyer's report unnecessarily contributed to the defendant's costs. That conduct was sufficiently egregious to justify a specified gross sum costs order under s 98(4)(c), with a limited reduction for excessive charges for non-solicitor staff. Given the plaintiff's past unpaid costs liability, the proceedings should be stayed if the gross sum is not paid within 28 days.

Court Disposition

Defendant's motion granted in part; costs ordered in a specified gross sum and proceedings to be stayed on non-payment within 28 days.

Orders

  • ["Pursuant to s 98(4)(c) of the Civil Procedure Act, the costs referred to in orders 2 – 4 of the Court's orders on 16 May 2018, and the costs of the Notice of Motion filed on 25 May 2018, are to be paid by the plaintiff to the defendant in the specified gross sum of $88,421.29 within 28 days, failing which the...