State of New South Wales v Hamod

The Court of Appeal of New South Wales considered an appeal by the State of New South Wales against an order made by a single judge concerning the set-off of costs. The dispute arose from an interlocutory application where costs were ordered to be paid forthwith to the plaintiff, Mr Hamod, and a subsequent order at trial that awarded trial costs against Mr Hamod. The State sought to set off the interlocutory costs against the trial costs.

The central legal issue before the Court of Appeal was whether the primary judge erred in the exercise of their discretion by refusing to order that the interlocutory costs payable to Mr Hamod be set off against the trial costs ordered to be paid by Mr Hamod to the State. This involved considering the significance of the interlocutory costs being made payable forthwith and the relationship between the two cost orders.

The Court of Appeal held that the primary judge had not erred in the exercise of discretion. Their Honours reasoned that the order for interlocutory costs to be paid forthwith indicated a clear intention that those costs were to be satisfied independently of any subsequent costs orders. The discretion to order a set-off was not absolute, and the specific circumstances, including the immediate enforceability of the interlocutory order, supported the refusal to allow a set-off.

The appeal was dismissed, with the State of New South Wales to pay Mr Hamod's costs, with Mr Hamod's costs to be on a submitting basis. Leave to appeal was granted, and the notice of appeal was directed to be filed within seven days.