Winau Australia Pty Ltd v LCC Property Developments Pty Ltd

Winau Australia Pty Ltd brought an action against LCC Property Developments Pty Ltd for breach of contract and associated damages. The case was dismissed for want of prosecution, and Winau subsequently sought an assessment of its costs on a gross sum basis. The Federal Circuit and Family Court of Australia had to determine whether it was appropriate to assess the costs on a gross sum basis in the circumstances of the case.

The primary legal issue was whether the court should assess costs on a gross sum basis when the proceedings had been dismissed for want of prosecution. The court had to consider the principles applicable to costs assessments in cases where the proceedings have been dismissed and whether there were any exceptional circumstances that warranted a departure from the usual practice.

The court noted that the usual practice is to assess costs on an indemnity basis in cases where proceedings are dismissed for want of prosecution. However, it acknowledged that there may be exceptional circumstances where a departure from this practice is warranted. In this case, the court found that there were no exceptional circumstances that justified an assessment of costs on a gross sum basis. The court emphasised that the dismissal of the proceedings for want of prosecution was a reflection of the plaintiff's failure to diligently pursue the case, and it was not appropriate to reward that failure with a gross sum costs assessment.

The court dismissed the application for a gross sum costs assessment. The court found that the usual practice of assessing costs on an indemnity basis in cases where proceedings are dismissed for want of prosecution should apply. The court did not find any exceptional circumstances that warranted a departure from this practice. The court's decision was a clear indication that the dismissal of proceedings for want of prosecution was a reflection of the plaintiff's failure to diligently pursue the case, and it was not appropriate to reward that failure with a gross sum costs assessment.