Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4)

The New South Wales Court of Appeal considered an application by Riva NSW Pty Ltd for indemnity costs and gross sum costs orders against Mark A Fraser and Christopher P Clancy, who were trading as Fraser Clancy Lawyers. The dispute arose from previous costs orders made in judicial review proceedings commenced by Riva.

The primary legal issues before the Court of Appeal were whether Riva's application constituted an attempt to vary or set aside existing costs orders, whether the application was made within the prescribed time limit of 14 days for filing a notice of motion, and whether there was sufficient evidence to support a well-informed exercise of discretion for the requested costs orders, particularly in the absence of expert evidence addressing the reasonableness of the costs.

Leeming JA found that the application was not made within the required timeframe and that the evidence provided was insufficient to ground the requested costs orders. His Honour noted that the costs claimed appeared substantially too high. Consequently, the applications for indemnity costs and gross sum costs were refused.

The Court ordered that Riva pay Fraser Clancy’s costs of the judicial review proceedings, excluding the costs of a specific notice of motion for security for costs filed on 19 December 2017, for which costs had already been ordered on 22 March 2018. Otherwise, Fraser Clancy’s notice of motion filed on 4 October 2018 was dismissed.