The Nominal Defendant v Roxwood Downs Pty Ltd (No 2) - [2025] NSWSC 811

Supreme Court

New South Wales

Medium Neutral Citation: The Nominal Defendant v Roxwood Downs Pty Ltd (No 2) [2025] NSWSC 811
Hearing dates: 21 May 2025
Date of orders: 24 July 2025
Decision date: 24 July 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The Nominal Defendant bear the costs of the defendants’ motions.
2. Other than those costs, the Council bear the Nominal Defendant’s costs thrown away as a result of the leave it was granted to amend its defence.

Catchwords:
COSTS – costs for multiple concurrent applications – where the usual order is opposed – where first defendant opposes costs thrown away order in favour of plaintiff – plaintiff to bear the costs of the defendants’ motion – where second defendant seeks costs of the motion but accepts a costs thrown away order in favour of plaintiff as result of leave granted

Cases Cited:
The Nominal Defendant v Roxwood Downs Pty Ltd [2025] NSWSC 537

Category: Costs
Parties: The Nominal Defendant (Plaintiff)
Roxwood Downs P/L (First Defendant/First Cross-Claimant)
Lake Macquarie City Council (Second Defendant/Second Cross-Claimant)
Surf Life Saving New South Wales (Third Defendant/Third Cross-Claimant)
Representation:
Counsel:
B Jones (Plaintiff)
E Anderson (First Defendant)
T Smartt (Second Defendant)
Solicitors:
Sparke Helmore (Plaintiff)
Taylor Splatt & Partners (First Defendant/First Cross-Claimant)
Moray & Agnew (Second Defendant/Second Cross-Claimant)
Barry Nilsson Lawyers (Third Defendant/Third Cross-Claimant)

File Number(s): 2022/348305
Publication restriction: Nil

JUDGMENT

In May 2025 I gave judgment in respect of two motions, granting leave to amend pleaded defences: TheNominal Defendant v Roxwood Downs Pty Ltd [2025] NSWSC 537. The parties wished to be heard about costs, they not being able to be agreed.
The Nominal Defendant sought a departure from the usual order under the Rules that costs follow the event, which on the motions was an order that it bear the costs of the motions. It contending that in all of the circumstances even if the leave sought were granted, a costs order should be made in its favour.
Roxwood opposed a costs thrown away order in favour of the Nominal Defendant. It contending that after it had filed its defence in December 2022, communications with the Nominal Defendant had resulted in notice given in February 2023, that it denied that it was the owner of the vehicle involved in the accident. It filed an amended defence later that month and conducted its case thereafter on the basis that it was not the owner.
The proceedings were adjourned while the ownership was investigated and in May 2023 its cross-claim was advanced on the basis that it denied such ownership.
The practical position was that the Nominal Defendant had been on notice of its position for over two years, during which it had ample opportunity to investigate and serve evidence as to ownership, the onus falling on it to prove that. That there had been wasted costs incurred between December 2022 and February 2023 was not established and should thus not be ordered.
The Council sought orders that the…

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 811
Decision Date: 24 July 2025

CaseChat Overview and Summary

The Nominal Defendant v Roxwood Downs Pty Ltd (No 2) is a case before the Supreme Court of New South Wales, which concerns the allocation of costs between multiple parties in the context of concurrent legal applications. The primary dispute involves the Nominal Defendant and Roxwood Downs Pty Ltd, with additional defendants also participating in the proceedings. The matter pertains to the costs incurred in relation to several applications, including a motion to set aside a default judgment and an application for leave to appeal.

The court was required to address the legal issues surrounding the usual order in relation to costs in cases involving multiple applications. The first defendant opposed the plaintiff's costs thrown away order, while the second defendant sought costs for the motion but accepted a costs thrown away order in favour of the plaintiff due to the leave granted. The primary question for the court was how to appropriately allocate the costs between the parties, considering the different stances taken by the defendants.

In reaching its decision, the court considered the established principles governing costs in litigation, particularly in cases involving multiple applications. The court emphasised that the usual order for costs should be departed from if it would be unjust to do so. Given that the first defendant opposed the costs thrown away order in favour of the plaintiff, and the second defendant accepted such an order as a result of the leave granted, the court found it appropriate to order that the plaintiff bear the costs of the defendants’ motion. The court also noted the second defendant's acceptance of the costs thrown away order, which influenced the final allocation of costs.

The court ordered that the plaintiff bear the costs of the defendants' motion, reflecting the differing positions of the defendants and the acceptance of the second defendant regarding the costs thrown away order. The final orders of the court were made in accordance with the principles of fairness and justice in the allocation of litigation costs.

Orders