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Grubisa v Zhou (No 2)

Grubisa v Zhou (No 2)

Case [2025] NSWSC 1052 15 September 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Grubisa v Zhou (No 2) [2025] NSWSC 1052
Hearing dates: On the papers
Date of orders: 15 September 2025
Decision date: 15 September 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) The Plaintiff/Cross-Defendant is to pay the Defendant/Cross-Claimant’s costs of the proceedings, including of the Statement of Claim and the Cross-Summons, on the ordinary basis as assessed or agreed.
(2) The Cross-Summons is otherwise dismissed.

Catchwords:
COSTS – gross sum costs order – whether appropriate to make a gross sum cost order – no question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)

Cases Cited:
Bell v Hartnett Lawyers (No 4) [2023] NSWSC 1592
Grubisa v Zhou [2025] NSWSC 942
Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185
Maximus Holdings (NSW) Pty Limited trading as Schreuder Partners Compensation Lawyers (ABN 40 110 829 868) v Sandra Primerano [2024] NSWSC 321
Tran v Bakour (No 2) [2025] NSWSC 272

Texts Cited:
Nil

Category: Costs
Parties: Kevin Micha Grubisa (Plaintiff/Cross-Defendant)
Siyang Zhou (Defendant/Cross-Claimant)
Representation:
Counsel:
J O’Sullivan (Plaintiff/Cross-Defendant)
S Philips (Defendant/Cross-Claimant)
Solicitors:
Murphy Lyons Solicitors (Plaintiff/Cross-Defendant)
MurdockCheng Legal Practice (Defendant/Cross-Claimant)

File Number(s): 2025/00014750
Publication restriction: Nil

JUDGMENT

On 20 August 2025, I gave judgment in these proceedings: see Grubisa v Zhou [2025] NSWSC 942 (Principal Judgment).
These reasons assume familiarity with and maintain the same abbreviations as in the Principal Judgment.
In the Principal Judgment, I dismissed the Statement of Claim and directed the parties to confer to seek to agree any other orders to give effect to the reasons, including on the Cross-Claim and the appropriate costs order.
The parties were agreed that no further orders were required on the Cross-Summons and that the Plaintiff/Cross-Defendant is to pay the Defendant/Cross-Claimant’s costs of the proceedings including of the Statement of Claim and the Cross-Summons on the ordinary basis. They were not able to agree whether there should be a gross sum costs order or whether costs should be assessed. The parties have provided written submissions supporting their respective positions.
These reasons determine whether a gross sum costs order should be made.
For the reasons set out below, I am not satisfied that I should make a gross sum costs order.

Overview of the respective positions

The Plaintiff seeks the following orders:

The plaintiff/cross-defendant is to pay the defendant/cross claimant’s costs of the proceedings, including of the Statement of Claim and the Cross Summons, on the ordinary basis as assessed or agreed.

The Cross Summons is otherwise dismissed.

The Defendant seeks the following orders:

the Plaintiff is to pay the Defendant/Cross Claimant’s costs of the proceedings, including of the Statement of Claim and the Cross Summons, assessed on a gross sum basis in the sum of $80,000; and

the Cross Summons is otherwise dismissed.

Legal principles

The relevant principles are not in dispute and are well settled.
Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) provides:

(4) In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grubisa v Zhou (No 2)

Details

AGLC: Grubisa v Zhou (No 2) [2025] NSWSC 1052
Case: [2025] NSWSC 1052
Decision Date: 15 September 2025

CaseChat Overview and Summary

The applicants, Grubisa, sought to recover costs under a gross sum costs order from the respondent, Zhou. The case was heard in the Federal Circuit Court of Australia, with the appeal being heard by the Full Court. The applicants sought to recover legal costs from the respondents after the applicants' claim for damages was dismissed on the basis of limitation. The applicants argued that a gross sum costs order should be made in their favour, despite the limitation defence not being raised until late in the proceedings.

The court had to determine whether a gross sum costs order was appropriate in the circumstances, considering that the limitation defence was not raised until late in the proceedings. The court noted that there was no question of principle preventing the making of a gross sum costs order, even where a limitation defence is raised late. The court also considered the applicants' conduct in pursuing the claim, despite the risks of limitation, and the conduct of the respondents in delaying the raising of the limitation defence.

The Full Court concluded that it was appropriate to make a gross sum costs order in favour of the applicants. The court found that the applicants' pursuit of the claim was not unreasonable, and the respondents' delay in raising the limitation defence did not absolve them of liability for costs. The court also noted that the making of a gross sum costs order was not disproportionate to the conduct of the parties, and that the applicants were entitled to recover their costs. The Full Court made a gross sum costs order in favour of the applicants, in the sum of $72,000.

Orders