Whitehall v Oxborough

[2023] NSWDC 167

District Court

New South Wales

Medium Neutral Citation:

Whitehall v Oxborough [2023] NSWDC 167

Hearing dates:

7 December 2023 and written submissions dated 21 February 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

1   The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis assessed at $300,000.00.

Catchwords:

COSTS – gross sum costs order

Legislation Cited:

Civil Procedure Act2005

Cases Cited:

Hamod v State of New South Wales [2011] NSWCA 375

Idoport Pty Ltd v National Australia Bank [2007] NSWSC 23

Category:

Costs

Parties:

Nathanial John Whitehall (Plaintiff)
Terry Oxborough (Defendant)

Representation:

Counsel:
R Potter SC (Defendant)

Solicitors:
Self-represented (Plaintiff)
Rostron Carlyle Rojas (Defendant)

File Number(s):

2018/159739

Publication restriction:

None

JUDGMENT

Introduction

1. The defendant seeks a gross sum costs order.

2. The plaintiff’s proceedings were dismissed on 1 December 2022 after the plaintiff did not attend Court on the date when the proceedings were listed for hearing. This followed a period where the plaintiff was self-represented and participated intermittently in the proceedings.

3. On 1 December 2022 I ordered that the plaintiff pay the defendant’s costs of the proceedings on an indemnity basis because there had been numerous occasions of non-compliance by the plaintiff with directions made in the proceedings.

4. The defendant relied on three affidavits of Ella Theresa Mackintosh affirmed 23 November 2022, 9 December 2022 and 22 December 2022.

The Relevant Law

5. Section 98(4)(c) Civil Procedure Act2005 empowers the Court to award a specified gross sum instead of assessed costs.

6. In Idoport Pty Ltd v National Australia Bank [2007] NSWSC 23 the Court at [9] recited the principles relevant to the exercise of discretion as follows:

1. the purpose of the rule is to avoid expense, delay and aggravation involved in protracted litigation;

2. the court must be confident that the approach taken to the estimate of costs is logical, fair and reasonable;

3. the court must have sufficient confidence in arriving at an appropriate sum on the materials available;

4. a gross sum assessment, by its very nature, does not envisage a process similar to that of a traditional assessment of costs;

5. the gross sum can only be fixed broadly having regard to the information before the court;

6. the power to award a gross sum must be exercised judicially, after giving the parties adequate opportunity to make submissions on the matter;

7. the court must be astute to prevent prejudice to the respondents by overestimating a costs and on the other hand must be astute not to cause an injustice to the successful party by a “fail safe” discount on the cost estimates submitted to the court.

7. In Hamod v State of New South Wales [2011] NSWCA 375 the Court of Appeal at [816] – [820] set out a number of relevant considerations as follows:

1. the relative responsibility of the parties for the costs incurred;

2. the degree of any disproportion between the issue litigated in the costs claimed;

3. the complexity of the proceedings in relation to their…