Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd

The case of Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd dealt with an application for costs following a trial that was vacated due to the plaintiff's late amendment to their pleadings. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to amend its pleadings after the trial had commenced, leading to the trial being vacated. The defendant, Bass Finance, applied for costs under section 98(4)(c) of the Civil Procedure Act 2005 (NSW). The legal issues at the heart of this case revolved around whether the plaintiffs' late amendment to their pleadings justified a gross sum costs order and, if so, whether the cancellation fee incurred by the defendant's counsel should be included in the costs.

The court examined the principles relevant to costs orders under section 98(4)(c), noting that such orders are not to be made lightly and require consideration of the conduct of the parties. The court referenced the case of P&M Constructions Pty Ltd v The Queen to guide its decision, emphasising the need for the court to ensure that a just and equitable outcome is achieved. In assessing whether the cancellation fee should be included in the costs, the court considered the rationale behind awarding costs, which is to compensate the successful party for the expenses reasonably incurred in bringing or defending the proceedings. The court determined that the cancellation fee did not constitute a reasonable expense directly related to the proceedings and, therefore, should not be included in the gross sum costs order.

The court ultimately concluded that the plaintiffs' late amendment to their pleadings justified a gross sum costs order. However, the court held that the cancellation fee incurred by the defendant's counsel was not recoverable as it did not meet the criteria for reasonable expenses directly related to the proceedings. The court made a gross sum costs order, excluding the cancellation fee from the total costs awarded. This decision underscores the importance of adhering to procedural timelines and the potential consequences of failing to do so.