Webster v Super Smart Strategies Pty Ltd (No 3)

The parties in this case are Webster, the plaintiff, and Super Smart Strategies Pty Ltd, the defendant, with Webster having filed a cross-claim against the defendant. The nature of the dispute revolves around an application for a gross sum order for costs pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW). The application was brought before the court to determine the appropriate sum for costs incurred during the proceedings. No response was received from the cross-claimants regarding the gross sum costs application. The court was tasked with deciding whether sufficient material was provided to determine an appropriate sum, particularly in light of the cross-claimants' decision not to pursue their cross-claims, thereby contributing unnecessarily to the costs of the proceedings.

The legal issues before the court were whether the lack of response from the cross-claimants could be considered as a sufficient basis for determining the gross sum order and whether the cross-claimants' decision to abandon their claims warranted an adjustment to the costs incurred. The court had to balance the principle that costs should follow the event against the necessity of ensuring that the parties bear their own costs where they have contributed to the proceedings. The court also needed to assess whether the cross-claimants' actions were unreasonable and whether they had acted in a manner that warranted the plaintiff being awarded costs.

The court found that sufficient material was provided to determine an appropriate sum for the costs. It held that the cross-claimants' decision to file and subsequently abandon their cross-claims unnecessarily contributed to the costs of the proceedings. The court concluded that the cross-claimants' actions were unreasonable and that it was appropriate to make a gross sum order in respect of the applicants' costs. The court noted that the absence of a response from the cross-claimants regarding the costs application was a factor that could be considered in determining the appropriate sum. The court exercised its discretion to make a gross sum order in favour of the plaintiff, Webster, reflecting the costs incurred due to the cross-claimants' actions.

The final orders of the court included a gross sum order for the costs of the proceedings, recognising that the cross-claimants' unnecessary actions had contributed to the overall costs. The court's decision underscores the importance of parties considering the potential financial implications of their actions in litigation, particularly when deciding whether to pursue or abandon claims. The court's order serves as a reminder that parties should act reasonably and be mindful of the costs they impose on others during the course of legal proceedings.