Riva NSW Pty Limited v Mark a Fraser; Fraser v Riva (NSW) (No. 4)

In the case of Riva NSW Pty Limited v Mark a Fraser; Fraser v Riva (NSW) (No. 4), the court addressed complex issues concerning indemnity costs, the Chorley exception, and the appropriateness of a specified gross sum costs order. The litigation was between Riva NSW Pty Limited, the plaintiff, and Mark A Fraser, the defendant, who were embroiled in a long-standing dispute over costs. The case traversed several stages, including an initial costs order made on the ordinary basis, and subsequent applications for indemnity costs based on conduct that predated the proceedings.

The central legal issues that the court had to resolve involved whether the court could consider relevant delinquency to ground an order for indemnity costs based on conduct that occurred before the commencement of the proceedings. Another pivotal issue was whether the Chorley exception applied, which would allow solicitors to recover professional costs and disbursements incurred between the corporation and the solicitors, who were the clients of the corporation. Additionally, the court had to determine whether a specified gross sum costs order, rather than assessed costs, should be made under the Civil Procedure Act 2005, s 98(4)(c), and if so, what would be the appropriate quantum of such an order.

The court meticulously examined the conduct of the parties and the relevant legal principles. It held that the Court could indeed consider relevant delinquency to ground an order for indemnity costs based on pre-litigation conduct. Regarding the Chorley exception, the court ruled that the solicitors could not recover the professional costs and disbursements incurred between the corporation and the solicitors. Finally, the court found that it did not have sufficient material available to it to make a specified gross sum costs order instead of assessed costs, and thus, it declined to make such an order. The court concluded by setting out the appropriate quantum of the costs order based on the assessed costs method.