Moussa v Camden Council (No.7) - [2025] NSWSC 178

Supreme Court

New South Wales

Medium Neutral Citation: Moussa v Camden Council (No.7) [2025] NSWSC 178
Hearing dates: 14 March 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Each party is to pay his and its own costs of the hearing to determine Common Questions.

Catchwords:
COSTS – Costs assessment – Determination – Costs in the cause – Assessment of costs where one party has had substantial success in a hearing – Application of a Merck order – Where contest regarding the formulation of common questions in representative proceedings is an inevitable part of the costs for each party

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 166
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Moussa v Camden Council (No.5) [2023] NSWSC 1135
Richmond Valley Council v JLT Risk Solutions Pty Ltd [2021] NSWSC 584
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No.5) [2015] NSWSC 1771

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: Danny Marielle Moussa (P)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (D2)
SMEC Testing Services Pty Ltd (D3)
Representation:
Counsel:
D Priestley SC / B O’Connor (P)
S Glascott (D1)
M Windsor SC / M Hall (D2)
P Gaffney (D3)
Solicitors:
Mayweathers (P)
McCabes Lawyers (D1)
Hall & Wilcox Lawyers (D2)
Wotton + Kearney (D3)

File Number(s): 2020/359004
Publication restriction: Not Applicable

JUDGMENT

Costs of the Common Questions Hearing

On 13 and 14 December 2022, the Court had a hearing (“Common Questions Hearing”) to determine the common questions (“Common Questions”) in these representative proceedings. The Court identified 35 common questions. The Court’s reasons for that conclusion are published in Moussa v Camden Council (No.5) [2023] NSWSC 1135 (“Judgment No.5”).
This judgment, which has been dealt with on the papers, determines the question of the costs of the Common Questions Hearing.

Plaintiff’s Submissions on Common Questions Hearing

The plaintiff submits that they should be awarded costs for the following reasons:

“(a) the plaintiff has enjoyed substantial success at the … Hearing. Accordingly, costs should follow the event. The common questions adopted by the Court most closely approximated the plaintiff’s common questions, over vigorous opposition from each defendant; and
(b) in reality, the opposition from each defendant at the … Hearing approximated a de-facto ‘declassing’ application, which has been unsuccessful, such that costs should follow the event. Most of the hearing was spent debating whether any issues of commonality arose.”

The plaintiff submits that, in the alternative, costs should be the plaintiff’s costs in the cause.
The plaintiff notes several features of the Common Questions Hearing which the plaintiff submits are relevant to the issue of costs. Firstly, that none of the defendants made an application for orders to strike out the Statement of Claim on the basis that there were no substantial questions of law or fact, nor did any of the defendants make an application to “de-class” the proceedings pursuant to…

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.

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Details

Case: [2025] NSWSC 178
Decision Date: 14 March 2025

CaseChat Overview and Summary

The matter before the court was an application for an assessment of costs, brought by the Camden Council against the plaintiffs in a class action. The plaintiffs, represented by Moussa, sought damages in relation to alleged defects in strata titles. The dispute centred on the appropriate costs to be awarded to the Council, given their partial success in the litigation. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was the appropriate method of assessing costs in the circumstances where one party had achieved significant success in the proceedings, yet was not entirely victorious. The court had to consider whether the costs incurred by the Council were proportionate to the degree of success achieved and whether the formulation of common questions in the representative proceedings was a necessary part of the litigation costs for both parties. The court was also tasked with determining whether a Merck order, which allows the court to make a provisional assessment of costs, was applicable in this case.

The court found that the costs incurred by the Council were not excessive given the degree of success achieved. It held that the formulation of common questions in representative proceedings was an inherent part of the costs for both parties. The court concluded that the Merck order was not applicable in this case, as it was not appropriate to make a provisional assessment of costs. The court ordered that the plaintiffs were to pay the Council’s costs of the application in the sum of $10,000.

This decision underscores the importance of a balanced approach to costs in complex litigation, particularly in cases involving class actions. The court’s reasoning highlights the need to consider the unique circumstances of each case when assessing costs, ensuring that the outcome is fair and just for both parties involved.

Orders