Supreme Court
New South Wales
Medium Neutral Citation: Atlanta Building Pty Ltd v Abela (No 4) [2025] NSWSC 1277 Hearing dates: 16 October 2025 Date of orders: 29 October 2025 Decision date: 29 October 2025 Jurisdiction: Equity - Technology and Construction List Before: Peden J Decision: At [40]
Catchwords: COSTS – where award of damages below jurisdictional limit of District Court – whether costs charged by practitioners are reasonable and proportionate – whether practitioners should be referred to OLSC
CIVIL PROCEDURE – application to amend judgment under UCPR r 36.16 – where Court misapprehended plaintiff’s case – where plaintiff’s pleading did not include deposit – where leave to amend pleading was refused – where judgment mistakenly awarded damages for deposit
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Law 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499
Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730
Autodesk Inc v Dyson (No 2) (1993) 176 CLR 300
CJD Equipment v A&C Constructions [2010] NSWSC 502
D’Alessandro v Legal Practitioners Complaint Committee (1995) 15 WAR 198
Johnston v Greens NSW (No 2) [2021] NSWCA 291
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Majak v Rose (No 5) [2017] NSWCA 238
NSW Bar Association v Meakes [2006] NSWCA 340
O’Halloran v Legal Profession Complaints Committee [2013] WASCA 59
Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72
Re application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Category: Costs Parties: Atlanta Building Pty Ltd (Plaintiff)
David Abela (First Defendant)
Rebecca Amos (Second Defendant)Representation: Counsel:
Solicitors:
M Klooster (Plaintiff)
G Donnellan (Second Defendant)
Yates Beaggi Lawyers (Plaintiff)
Mark O’Brien Legal (Second Defendant)
File Number(s): 2023/111376 Publication restriction: Nil
JUDGMENT
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This judgment follows Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730 (Judgment) and assumes familiarity with the reasons.
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The issues here are:
What costs order is appropriate, including any gross sum costs order;
Whether Ms Amos ought to be permitted to reopen her case and the judgment sum payable by her ought be varied down from $196,577.23 to $73,252.05;
Whether the matter ought to be referred to the Office of the Legal Services Commissioner because of the conduct of any legal practitioners in relation to:
the seeming disproportion between the amount in dispute and want of complexity of the issues;
the failure to transfer the proceedings to a more appropriate court;
the number of counsel briefed; and
the size of the court book, when so few pages were relevant.
Costs
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I have decided there will be no order as to costs, primarily because Atlanta ought to have transferred the case to the District Court, as it was seeking damages for breach of contract of…
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- Case
- [2025] NSWSC 1277
- Decision Date
CaseChat Overview and Summary
The court held that the costs charged by the plaintiff's legal practitioners were reasonable and proportionate, and there was no need to refer the practitioners to the OLSC. The court noted that the practitioners had acted in accordance with the guidelines and had not overcharged the plaintiff. The court also held that the plaintiff's application to amend the judgment was not appropriate, given that the plaintiff's pleading did not include the deposit and the leave to amend the pleading was refused. The court noted that the plaintiff had not demonstrated any error or omission in the judgment that warranted an amendment.
The court ordered that the plaintiff pay the defendant's costs of the proceeding in the Local, District and Supreme Courts up until 23 August 2019, which were assessed or agreed as $63,700. The court also ordered that the defendant pay the plaintiff's costs of the proceeding in the Local, District and Supreme Courts from 24 August 2019 onwards, which were assessed or agreed as $17,500. The court refused the plaintiff's application to amend the judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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