Coshott v Burke (No 3)

In the matter of Coshott v Burke (No 3), the primary concern was the determination of costs on an indemnity basis, specifically whether these costs should be fixed in a lump sum. The parties involved were Coshott, the appellants, and Burke, the respondents. The Court of Appeal was tasked with deciding if the circumstances justified the exercise of the Court’s discretion to award costs on an indemnity basis, particularly in light of the appellants' conduct causing additional costs. The appellants argued for a discount of at least 30% on the lump sum costs claimed, citing various procedural grounds, while the respondents contended for the full amount as claimed.

The Court of Appeal considered the extensive litigation history between the parties and the desirability of resolving the cost issue efficiently. It highlighted that the lump sum costs procedure is designed to streamline the determination of the quantum of costs rather than replicate the taxation process. The Court rejected the appellants' arguments against the lump sum costs order, including their inability to cross-examine the costs preparer and the fact that the respondent was initially unrepresented. The Court found that the hourly rates claimed by the solicitor were well within permissible limits. The Court concluded that making a lump sum costs order was practicable and appropriate given the circumstances.

The Court of Appeal determined that the appellants should pay the respondents' costs of the appeal as a lump sum, fixed at specific amounts for each respondent. This decision reflects the Court’s consideration of the procedural fairness and the necessity to avoid protracted and expensive taxation processes. The lump sum costs were fixed in the sum of $18,610.17 for the first respondent, $15,606.55 for the second and fourth respondents, and $40,699.58 for the third respondent. The orders were made under Rule 39.32 of the Federal Court Rules 2011.