Daher v Gold & Eagle Constructions Pty Ltd

[2025] NSWSC 151

Supreme Court

New South Wales

Medium Neutral Citation:

Daher v Gold & Eagle Constructions Pty Ltd [2025] NSWSC 151

Hearing dates:

05 March 2025

Date of orders:

05 March 2025

Decision date:

05 March 2025

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

(1)    Judgment for the plaintiff against the first defendant for $1,203,546.50.

(2)    Order the first defendant to pay the plaintiff’s costs.

(3)    Judgment for the second defendant.

(4)    Order the plaintiff to pay the second defendant’s costs in the specified gross sum of $1,250.00.

Catchwords:

COSTS – work accident – general rule that costs follow the event – whether some other order should be made – where costs are likely to be small or relatively insignificant – where a gross sum cost order is appropriate

Legislation Cited:

Civil Procedure Act 2005, ss 56, 98

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Daher v Gold & Eagle Pty Ltd [2024] NSWSC 1575

Category:

Costs

Parties:

Anthony Daher (Plaintiff)
Gold & Eagle Constructions Pty Ltd (First defendant)
Steven Miller (Second defendant)

Representation:

Counsel:
M Daley (Plaintiff)
J Sukkar (Defendants)

Solicitors:
Brydens Lawyers (Plaintiff)
McMahons Lawyers (Defendants)

File Number(s):

2021/109934

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: I published reasons for judgment in the principal proceedings on 9 December 2024: see Daher v Gold & Eagle Pty Ltd [2024] NSWSC 1575. Mr Daher was successful against Gold & Eagle but not against Mr Miller, the second defendant. The parties are agreed that there should be a judgment in favour of Mr Daher against Gold & Eagle for $1,203,546.50 plus costs and that there should be a judgment in favour of Mr Miller against Mr Daher. The sole outstanding issue is whether Mr Miller’s costs of Mr Daher’s claim against him should abide the result or whether some different costs order should be made. Gold & Eagle and Mr Miller were at all times represented by the same lawyers. Each was insured by the same insurer. Neither Gold & Eagle nor Mr Miller filed a cross-claim against the other.

2. UCPR 42.1 provides as follows:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

3. Mr Daher submitted that some other order should be made because the defendants engaged common legal representatives who were instructed by an insurer who may be assumed to be dominus litis. The defendants’ defences were in identical or cognate terms. Their approach to Mr Daher’s claim and their final submissions did not address the legal differences between them as a reason for a differential result in favour of one or the other at the suit of Mr Daher.

4. Mr Daher’s submissions understandably drew attention to the fairly obvious fact that the additional costs incurred in defending Mr Miller would in all likelihood be very small. Presumably the only additional costs would relate to taking a statement from Mr Miller and associated matters. Mr Miller’s involvement in the proceedings did not in my estimation add to the length or complexity of the hearing. It is likely that Mr Miller would have been called by Gold & Eagle in its own defence if Mr Miller had not been joined as a defendant. The need to make final submissions on behalf of Mr Miller also did not increase the length or complexity of the trial.

5. Having considered the detailed and helpful submissions of Mr Daher and Mr Miller, I consider that the costs in question should follow the event. Subject only to what follows, I see no basis upon which to make a different costs order.

6. With the benefit of an uncontroversial acknowledgement that Mr Miller’s costs of the proceedings are likely, if not certainly, to be small if not in fact relatively insignificant, and having regard to the overriding purpose in s 56 of the Civil Procedure Act 2005, it seems to me that it is appropriate that I should make a fixed sum costs order in respect of those costs. Section 98 of the Act provides relevantly as follows:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount. [Emphasis added]

7. In the normal course of events, I would invite the parties to make submissions concerning the appropriateness of a specified gross sum costs order, including evidence about the amount of costs that the successful party contends it would be entitled to if costs were to be assessed in the orthodox way. In the present case, however, it seems to me that the additional costs that are likely to be incurred in an assessment of Mr Miller’s costs if they could not otherwise be agreed would be disproportionate to the likely sums involved.

8. I consider, therefore, in the exercise of my discretion, in the particular circumstances of this case that I should proceed to deal with the present application pursuant to s 98(4)(c) of the Act.

9. Accordingly, I make the following orders:

1. Judgment for the plaintiff against the first defendant for $1,203,546.50.

2. Order the first defendant to pay the plaintiff’s costs.

3. Judgment for the second defendant.

4. Order the plaintiff to pay the second defendant’s costs in the specified gross sum of $1,250.00.

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Decision last updated: 05 March 2025