Acknowledgement: the following material has been prepared by His Honour Justice Paul Brereton, AM RFD of the NSW Court of Appeal.
This chapter is concerned with the exercise of the jurisdiction to make costs orders between parties to litigation (and also, in some circumstances, against third parties). It is not concerned with costs as between legal practitioners and their clients, or (except incidentally) with applications for security for costs (as to which see [2-5900]ff).
The purpose of a costs order is to compensate the person in whose favour it is made, not to punish the person against whom the order is made: Northern Territory v Sangare (2019) 265 CLR 164 at ; Ohn v Walton (1995) 36 NSWLR 77 at 79; Allplastics Engineering Pty Ltd v Dornoch Ltd  NSWCA 33 at . It is not inconsistent with this principle that costs orders also play an essential role in case management; though not “punitive”, defaults in compliance with procedural directions will often merit a costs order, because of the additional cost which the default occasions to the innocent party.
The applicable law is provided by:
the Civil Procedure Act 2005 (“CPA”), which authorises the making of orders with respect to costs: s 98, including gross sum costs orders: s 98(4)(c), capped costs orders: s 98(4)(d), and costs orders against legal practitioners: CPA s 99
the Uniform Civil Procedure Rules 2005 (“UCPR”), which establish the general rule that costs “follow the event”: UCPR r 42.1
the Legal Profession Uniform Law Application Act 2014 (“LPULAA”) and Legal Profession Uniform Law, or (for proceedings which commenced before 1 July 2015), the (now repealed) Legal Profession Act 2004 (“LPA”)
the common law, which continues to regulate some aspects of the law of costs; and
specific statutory provisions for certain types of proceedings.
[8-0010] Power of the court to order costs
The CPA is the principal statutory source of the court’s power to award costs, and confers on the court “full power” to determine by whom, to whom and to what extent costs are to be paid, on what basis, and at any stage of proceedings, unless there are statutory provisions to the contrary: CPA s 98; see also Dal Pont at 6.14–6.17. The court may exercise that power whenever the circumstances warrant, having regard to the scope and purpose of CPA s 98: Oshlack v Richmond River Council (1998) 193 CLR 72; Hamod v State of NSW  NSWCA 375 at .
However, costs being in the discretion of the court, the discretion must be exercised on a principled and judicial basis: Northern Territory v Sangare (2019) 265 CLR 164 at ; Williams v Lewer  2 NSWLR 91 at 95. As explained in Sharpe v Wakefield  AC 173 at 179, to exercise discretion judicially requires adherence to “reason and justice, not according to private opinion ... according to law, and not humour”, and is not to be “arbitrary, vague, and fanciful, but legal and regular”. Consistency is “an essential aspect of the exercise of judicial power”: Northern Territory v Sangare at .
CPA s 98 is expressly subject to, relevantly, “any other Act”: s 98(1); Smith v Sydney West Area Health Service (No 2)  NSWCA 62 at . Instances of this include s 346 of the Workplace Injury Management and Workers Compensation Act 1998, which makes specific provision for the award of costs in claims for work injury damages including costs in court proceedings for such claims: see [8-0170]; and Defamation Act 2005, s 40: see [8-0050].
[8-0020] The general rule: costs follow the event
The general rule is that if the court makes any order as to costs, it is to order that the costs follow the event, unless it appears that some other order should be made: UCPR r 42.1. This general rule, in the context of the purpose of a costs order, founds a “reasonable expectation” on the part of a successful party of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at , ; Northern Territory v Sangare (2019) 265 CLR 164 at .
The general rule reflects the notion that justice to a successful party is not achieved if it comes at the price of being out-of-pocket, so that a party who is responsible for litigation should bear its costs. Underlying both the general rule that costs follow the event, and the qualifications to it, is the idea that costs should be paid in a way that is fair, having regard to the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: Commonwealth of Australia v Gretton  NSWCA 117 at ; Ohn v Walton (1995) 36 NSWLR 77 at 79.
It has been said that the “event” is not confined to the determination of the proceedings as a whole, or of particular causes of action, nor limited to issues in the technical pleading sense, but can extend to any disputed question of fact or law: Reid Hewett & Co v Joseph  AC 717; Williams v Stanley Jones & Co Ltd  2 KB 37; Jelbarts Pty Ltd v McDonald  VLR 478; Forster v Farquhar  1 QB 564 at 569; Hughes v Western Australian Cricket Association Inc  FCA 511; Cretazzo v Lombardi (1975) 13 SASR 4 at 12. However, the prevailing approach is that the words “follow the event” generally refer to the event of the claim or counter claim, so that a successful party should have the whole costs of the proceeding, including the costs of an issue on which it has failed, unless in respect of that issue the successful party has “unfairly, improperly, or unnecessarily increased the costs”: Windsurfing International Inc v Petit (1987) AIPC 90-441 at 37,861–37,862, although in an appropriate case, a costs order may be moulded to reflect the degree of success on distinct issues: Lavender View v North Sydney Council (No 2)  NSWSC 775; Uniline Australia Ltd (ACN 010 752 057) v Sbriggs Pty Ltd (ACN 007 415 518) (No 2)  FCA 920; Leallee v the Commissioner of the NSW Department of Corrective Services  NSWSC 518; Sahab Holdings Pty Ltd v Registrar-General [No 3]  NSWSC 403 at ; Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed)  NSWSC 1425 at –. Thus, in most ordinary cases, the “real practical outcome” of a particular claim will provide sufficient guidance: Windsurfing International Inc v Petit at 37,861–37,862; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2)  NSWCA 219 at .
However, the prima facie principle that costs follow the event is subject to the ability of the court to make further or other orders as required to achieve a just result: Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd  FCA 688; Furber v Stacey  NSWCA 242. Discretionary reasons for departing from the rule may arise where the successful party has failed to better an offer of compromise made by the unsuccessful party: see [8-0030]; where excessive or disproportionate costs (such as the briefing of Senior Counsel for simple applications) have been incurred: see [8-0160]; or where the ultimately successful party has failed on issues of substance, especially where those issues have occupied a substantial part of the proceedings: see [8-0040]. There are some classes of proceedings in which the general rule is not applied, invariably or at all: see [8-0050]. The general rule may also be displaced by contractual agreement: see [8-0060]. Other rules are necessary where there is no “event” because there is no final judgment on the merits, in particular where the parties settle the substantive dispute but are unable to resolve the question of costs: see [8-0070].
[8-0030] Departing from the general rule: depriving a successful party of costs
The discretion to depart from the general rule must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”: Williams v Lewer  2 NSWLR 91 at 95; Oshlack v Richmond River Council at . If considering a departure from the ordinary rule, the court should have regard to the purpose, rationale and principles of fairness which inform the general rule, referred to above, in particular that the award of costs should reflect the relative responsibilities of the parties for the incurring of costs: Commonwealth of Australia v Gretton  NSWCA 117 at ; Turkmani v Visalingam (No 2)  NSWCA 279 at . The onus lies on the unsuccessful party to demonstrate a basis for departing from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWSC 1111 at .
Some of the more usual reasons for depriving a successful party of costs, in whole or in part, are discussed below. While these are useful illustrations of circumstances in which departure from the general rule may be justified, it remains a matter for the discretion of the court whether, in the circumstances of any particular case within the scope of those examples, it is appropriate to depart from the general rule: Oshlack v Richmond River Council at ; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2)  NSWCA 256 at –.
Only in an exceptional case would a successful party not only be deprived of its costs but also ordered to pay the opponent’s costs: Knight v Clifton  Ch 700; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 42 FLR 213 at 220; Arian v Nguyen  NSWCA 5.
Circumstances that may influence a court to depart from the general rule that costs follow the event include disentitling conduct on the part of the successful party: Oshlack v Richmond River Council at , . Disentitling conduct in this context may be constituted by any conduct “calculated to occasion unnecessary expense” and need not necessarily amount to “misconduct”: Keddie v Foxall  VLR 320 at 323–324; Lollis v Loulatzis (No 2)  VSC 35 at , nor even amount to “a most exceptional case, or a strong or exceptional case”: G R Vaughan (Holdings) Pty Ltd v Vogt  NSWCA 263 at . Instances include:
where the successful party effectively invited the litigation: Ritter v Godfrey  2 KB 47
where the successful party unnecessarily protracted the proceedings: Lollis v Loulatzis (No 2) at , and
where the successful party pursued the matter solely for the purpose of increasing the costs recoverable.
The mere fact that a defendant strenuously defends a claim (and fails in some of those defences) does not entitle the plaintiff to all or some of the costs of proceedings in which the plaintiff does not succeed, or does not succeed to any material extent: AMC Caterers Pty Ltd v Stavropoulos  NSWCA 79 at –.
A successful party may be deprived of costs if its success is attributable to a ground raised only by a late amendment: Beoco Ltd v Alfa Laval Co Ltd  1 QB 137 (no costs awarded); Faraday v Rappaport  NSWSC 253 at –; cf Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2)  NSWCA 266 at –, . Although it has been said that, as a general rule, where a plaintiff makes a late amendment which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the cost of the action down to the date of amendment: Beoco Ltd v Alfa Laval Co Ltd at 154, citing Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries  1 All ER 873 and Lipkin Gorman v Karpnale Ltd  1 WLR 1340 (CA)); see also Murrihy v Radio 2UE Sydney Pty Ltd  NSWSC 318. This “general rule” has emerged in the context that though the late amendment has resulted in some slight measure of success for the plaintiff, ultimately the true victor, having regard to the case as a whole, was the defendant; where that is not so, the plaintiff may still recover some, or even all, its costs: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)  NSWSC 1111 at , , ; cf Almond Investors Ltd v Kualitree Nursery Pty Ltd (No 2)  NSWCA 318 at .
Where the successful party is only nominally successful
Generally, the “event” will be regarded as going against a party who recovers only nominal damages: Oshlack v Richmond River Council, above, at ; Ng v Chong  NSWSC 385, unless some other right is vindicated by the judgment notwithstanding that no substantial damages are recovered. Attention must be given, however, to the specific circumstances of each case: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd  1 All ER 873 at 874; EKO Investments Pty Limited v Austruc Constructions Ltd  NSWSC 371 at –; Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2)  NSWCA 171 at , citing Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd  NSWCA 39 at .
Quantum and proportionality
Even if success is more than merely nominal, the amount of the damages recovered may affect the question of costs: Alltrans Express Ltd v CVA Holdings Ltd  1 All ER 685, particularly if it falls below the threshold referred to in UCPR rr 42.34 or 42.35, in which case the successful plaintiff is entitled to its costs only if the court is satisfied that the proceedings should have been commenced and continued in that court: Redwood Anti-Aging Pty Ltd v Knowles (No 2)  NSWSC 742 at –. UCPR r 42.35 provides that in proceedings in the District Court, where a plaintiff obtains a judgment in an amount of less than $40,000, an order for costs may, but will ordinarily not, be made, unless the court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted. UCPR r 42.34 makes similar provision in respect of proceedings in the Supreme Court where less than $500,000 is recovered.
Relevant considerations as to whether the commencement and continuation of the proceedings in the higher court were warranted include the complexity of the factual and/or legal issues: Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd (No 2)  NSWCA 340 at –; the amount claimed, and the reasons for this; the amount actually recovered, and the reasons for this; the difficulty or otherwise of assessing the likely damages awarded; the nature of the proceedings in question, and how this impacts, if at all, upon the need to proceed in the higher court; the conduct and attitude of the parties to litigation; and the importance of the legal principle involved in the case as a matter of precedent: Dal Pont at 12.15; and Singapore Airlines v Principle International at . In McLennan v Antonios (No 2)  NSWDC 38, where the plaintiff had recovered only $12,000 in a claim under Motor Accidents Compensation Act 1999, a contention that no costs order should be made failed on the basis that the District Court was a specialist personal injuries and motor accidents court while the Local Court was not.
A significant disproportion between the amount for which judgment is recovered and the costs of the proceedings may warrant depriving an otherwise successful plaintiff of a usual costs order, including of a prima facie entitlement to indemnity costs arising from bettering an offer of compromise: Jones v Sutton (No 2)  NSWCA 203.
It has been held that a party may apply under CPA and UCPR rr 12.7 and 13.4 to stay or to strike out the proceedings in their entirety, on the basis that the costs are out of all proportion to the object of resolving the issues between the parties, though such cases will be very rare: Jameel v Dow Jones & Co Inc  QB 946 at -; Bleyer v Google Inc (2014) 88 NSWLR 670; Vizovitis v Ryan  ACTSC 155 at , referring to Jones v Sutton (No 2). This view is not without controversy and has not been resolved at appellate level in Australia: see the later comments by McCallum JA in Massarani v Kriz  NSWCA 252, referring to Smith v Lucht  QDC 302; Feldman v The Daily Beast Company LLC  NSWSC 831 at –; Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 at ; ; ; Lazarus v Azize  ACTSC 344 at ; Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639 at –; Watney v Kencian  QCA 116 at ; GG Australia Pty Ltd v Sphere Projects Pty Ltd (No 2)  FCA 664 at ; Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 at , ; Armstrong v McIntosh (No 2)  WASC 379 at ; Fox v Channel Seven Adelaide Pty Ltd (No 2)  SASC 180 at -; and Khalil v Nationwide News Pty Ltd (No 2)  NSWDC 126 at .
That the proceedings involve some public interest aspect does not, of itself, warrant departure from the general rule that costs follow the event: Oshlack v Richmond River Council at ; Re Kerry (No 2) — Costs  NSWCA 194 at , ; cf CSR Ltd v Eddy (2005) 226 CLR 1 at –. While it may be a relevant consideration that there is a divergence of authority on a particular issue, in private litigation the importance of the subject matter does not necessarily provide a basis in for refusing to award costs to the successful party: Rinehart v Welker (No 3)  NSWCA 228 at . Nor do the general vicissitudes of litigation warrant a departure from the principle, even where a judge’s error necessitates an application to vary an order: Jaycar Pty Ltd v Lombardo  NSWCA 284 at –.
Where a party seeks and obtains some favour or dispensation from the court (such as leave to amend or an extension of time), and although the starting point remains the general rule under UCPR r 42.1, so that the inquiry is whether in the exercise of the court’s discretion, that rule should be departed from or some other order preferred: (Nowlan v Marson Transport Ltd (2001) 53 NSWLR 116 at ), ordinarily (though not invariably) the party seeking the indulgence is required to pay the costs of the application irrespective of the outcome, unless the other party has unreasonably opposed it: Holt v Wynter (2000) 49 NSWLR 128 at ; Nardell Coal Corporation v Hunter Valley Coal Processing (2003) 178 FLR 400 at 435-6; Celermajer Holdings Pty Ltd v Kopas  NSWSC 619 at , citing The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2)  NSWSC 797 at . However, whether this was a general rule was doubted in Fordham v Fordyce  NSWCA 129 at ; see also The Salvation Army (South Australia Property Trust) v Rundle  NSWCA 347 at – and –; and Mamfredas Investment Group Pty Limited (formerly known as MAM Marketing Pty Ltd) v PropertyIT and Consulting Pty Ltd  NSWSC 929 at , where the existence of such an overarching principle was said to be “not clear”. This rule is of particular application where the party seeking the indulgence requires relief from some relevant delinquency, in which case costs are ordinarily awarded in favour of the unsuccessful opposing party (Pascoe v Edsome Pty Ltd (No 2)  NSWSC 544) whereas unsuccessful opposition to a reasonable application for leave to amend is in a different category and might result in no order, or even an order that the respondent pay the applicant’s costs. An application to vary an order where the judge rather than a party has made an error is not an application for an indulgence: Jaycar Pty Ltd v Lombardo at .
Offers of compromise and Calderbank letters
The general rule is displaced where the result is no more favourable to a successful plaintiff than an offer of compromise made by the defendant in accordance with the rules of court. In such a case, unless the court otherwise orders, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs on the ordinary basis up to the date of the offer, but the defendant is entitled to an order against the plaintiff for its costs on the indemnity basis thereafter: UCPR r 42.15.
The general rule may be displaced as a matter of discretion where the result is no more favourable to the successful party than an offer made by the unsuccessful party in a Calderbank letter: Calderbank v Calderbank  3 All ER 333; Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 at 108. However, unlike a formal offer of compromise, a Calderbank letter is merely a relevant consideration in the exercise of the discretion, and does not have an equivalent presumptive effect to an offer of compromise under the rules: Commonwealth of Australia v Gretton at ; Leichhardt Municipal Council v Green  NSWCA 341 at , –; Nobrega v Trustees for the Roman Catholic Church for the Archdiocese of Sydney (No 2)  NSWCA 133 at –; Skalkos v Assaf (No 2)  NSWCA 236 at ; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd  NSWCA 74 at –. One reason for this is that a party seeking to take advantage of an offer for the purposes of costs should be expected to comply with the procedures and safeguards provided by the rules of court. Nonetheless, as a matter of discretion, a Calderbank offer may justify a special order for costs, including an order for costs on an indemnity basis, if the final judgment is no more favourable than the offer, its rejection was unreasonable: Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2)  NSWCA 344 at ; Jones v Bradley (No 2)  NSWCA 258 at ; SMEC Testing Services Pty Ltd v Campbelltown City Council  NSWCA 323 at , and the offer sufficiently foreshadowed its use to support a special costs order: Brymount Pty Ltd v Cummins (No 2)  NSWCA 69 at –; Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot (No 2)  NSWCA 356; Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo)  NSWSC 816 at –, –.
See also “Offers of compromise and Calderbank letters” under [8-0130].
Offers of contribution
Where a party has made an offer to contribute under UCPR r 20.32, the court must take into account both the fact and the amount of the offer in exercising its discretion as to costs: UCPR r 42.18; Simmons v Rockdale City Council (No 2)  NSWSC 1275; Thornton v Wollondilly Mobile Engineering (No 2)  NSWSC 742 at –; James Hardie & Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 at . While such an offer is only “taken into account”, which means that it does not have the presumptive effect of an offer of compromise, it is a useful tool for one defendant against another in litigation. The necessary consequence of acceptance of an offer of contribution is the application of r 20.27(3), being the ability to apply for judgment to be entered accordingly: Charlotte Dawson v ACP Publishing Pty Ltd  NSWSC 542 at . A defendant making an offer to contribute may seek costs, including indemnity costs.
[8-0040] Departing from the general rule: apportionment
Mixed success on multiple issues
Where the litigation involves multiple issues, the ultimately successful party may have failed on one or a number of the issues in the trial. Where the ultimately unsuccessful party has succeeded (and, as a corollary, the successful party has failed) on one or more substantial issues, the question often arises whether there should be a departure from the general rule given that “the event” is not necessarily limited to the final overall outcome, but can include individual issues in the proceedings: Williams v Stanley Jones & Co Ltd  2 KB 37; Jelbarts Pty Ltd v McDonald  VLR 478; see [8-0020]. In this context, courts do not usually apportion costs between issues, but act on the outcome of the proceedings as a whole, without attempting to differentiate between particular issues on which the successful party may not have succeeded: Cretazzo v Lombardi (1975) 13 SASR 4 at 12. As the High Court cautioned in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2)  HCA 53 at , there are “good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like”. The severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general rule: Hawkesbury District Health Service Ltd v Chaker (No 2)  NSWCA 30 at . A successful party’s entitlement to the whole of the costs of the proceedings should not be discounted to allow for another party’s success on a separate issue that played a very minor part in the proceedings as a whole: Waters v PC Henderson (Australia) Pty Ltd  NSWCA 338; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2)  NSWCA 256 at ; Macourt v Clark (No 2)  NSWCA 411 at .
However, the court must strike a balance between permitting litigants to canvas all issues, while not rewarding them for unreasonable conduct or encouraging the agitation of unnecessary issues: Cretazzo v Lombardi (1975) 13 SASR 4 at 16. These days apportionment to reflect the relative success of the parties is becoming more commonplace. Unreasonable or improper conduct is not a necessary condition for moderating a costs order to reflect a party’s failure on a particular issue: Short v Crawley (No 40)  NSWSC 1302 at . The court may depart from the general rule if the unsuccessful party succeeds on significant issues: James v Surf Road Nominees Pty Ltd (No 2)  NSWCA 296 at –; Bostik Australia Pty Ltd v Liddiard (No 2)  NSWCA 304 at ; Sydney Ferries v Morton (No 2)  NSWCA 238 at –; Roads and Traffic Authority (NSW) v McGregor (No 2)  NSWCA 453 at ; Cross v Queensland Newspapers Pty Ltd (No 2)  NSWCA 120 at ; Tarabay v Leite  NSWCA 259 at . In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at –, Kiefel and Keane JJ concluded that each side should bear its own costs on the basis that the plaintiff’s limited success was largely “a Pyrrhic victory, given the rejection of substantial aspects of her case”.
A court will generally only deprive the successful party of the costs relating to an issue on which it was unsuccessful when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No 2)  NSWCA 15 at –; Waters v PC Henderson (Australia) Pty Ltd. An issue or group of issues is “clearly dominant” when it is clearly dominant in the proceedings as a whole: Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2)  NSWCA 256 at ; cf Correa v Whittingham (No 2)  NSWCA 471 at –; Smith’s Snackfood Co Ltd v Chief Commissioner of State Revenue (NSW)  NSWCA 470 at – (cross-appeal not clearly dominant or separable); Xu v Jinhong Design & Constructions Pty Ltd (No 2)  NSWCA 333 at  (contractual issues not clearly dominant or separable); Turkmani v Visvalingan (No 2)  NSWCA 279 at  (contributory negligence not clearly separable from liability). Greater latitude is allowed in this respect to a defendant than to a plaintiff, so that the general rule may be departed from more readily against a successful plaintiff who has pressed additional issues which have failed, than against a successful defendant who has unsuccessfully raised additional issues: Ritter v Godfrey  2 KB 47; Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166 at 169; Richmond River Council v Oshlack (1996) 39 NSWLR 622 at 637; Hendriks v McGeoch  NSWCA 53 at ; Griffith v ABC (No 2)  NSWCA 145 at , –, –; Dal Pont 8.8–8.9. Thus where a plaintiff's case fails, it may sometimes be appropriate to order the plaintiff to pay the costs of issues unsuccessfully raised by the defendant, even if those issues are severable, so long as the defendant acted reasonably in raising those issues; but it is less often the case that a defendant would be ordered to pay the costs of severable issues unsuccessfully raised by an otherwise successful plaintiff. However, the requirements of CPA s 56, that parties assist the court to facilitate the just, quick and cheap resolution of the real issues on the proceedings and take reasonable steps to resolve or narrow the issues in dispute, apply to defendants as well as plaintiffs. This is relevant to the exercise of the costs discretion: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2)  NSWCA 171 at –.
The principles governing the making of a costs order to reflect the costs incurred in dealing with a particular issue on which the successful party in the proceedings did not succeed have been summarised, in the context of appellate proceedings, by the Court of Appeal in Bostik Australia Pty Ltd v Liddiard (No 2)  NSWCA 304 at  as follows:
Where there are multiple issues in a case the court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd  NSWCA 338.
In relation to trials, it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2)  NSWCA 306 at , so a similar approach is adopted on appeal.
If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2)  NSWCA 374 at .
Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of NSW v Stanley  NSWCA 330 at  per Hislop J (with whom Beazley and Tobias JJA agreed).
A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2)  NSWCA 296 at .
Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.
See also Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2)  NSWCA 373; City of Canada Bay Council v Bonaccorso Pty Ltd (No 3)  NSWCA 57 at ; Turkmani v Visvalingham (No 2)  NSWCA 279; Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2)  NSWCA 171 at ; Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171 at ; Ulman v Live Group Pty Ltd  NSWCA 338 at –.
Giving effect to apportionment
Orders to the effect that party A pay party B’s costs of specified issues (and that party B pay party A’s costs of other issues) create complexities for assessors. It is therefore undesirable to have multiple costs orders defined by reference to issues arising out of the one set of proceedings. It is preferable to make a single order that covers all of the issues, on what has often been referred to as a “broad axe” basis: In the matter of Commercial Indemnity Pty Limited  NSWSC 1125, that Party B pay a percentage of Party A’s costs of the proceedings: see Precedent 8.6 at [8-0200]. This avoids visiting on assessors a requirement to allocate work and costs between issues. The nature and extent of the apportionment is a discretionary one, and the court may take an impressionistic approach to apportionment, “on a relatively broad brush basis”, rather than seeking to identify and quantify issues with precision: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2)  NSWCA 219 at ; Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272; Elite Protective Personnel Pty Ltd v Salmon (No 2)  NSWCA 373 at ; Bostik Australia Pty Ltd v Liddiard (No 2) at . It has been said that the approach of analysing the percentage of costs between the issues by counting the proportion of paragraphs and pages devoted to each factual topic is “a highly artificial way of proceeding”, giving “a false air of mathematical precision”: Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2)  NSWCA 256 at ; Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (No 2)  NSWCA 173 at . Nonetheless, such an analysis can sometimes provide useful assistance in apportionment, so long as its limitations are recognised.
If, for example, it is considered that issues on which (unsuccessful) Party B succeeded accounted for about 20% of the costs of the proceedings, and that Party A should not recover costs of those issues but should not have to pay Party B’s costs of them, then the order would be that Party B pay 80% of Party A’s costs of the proceedings. If it were considered that Party A should pay Party B’s costs of the issues on which Party A failed, then Party B should pay 60% of Party A’s costs of the proceedings.
Other cases for apportionment
Independently of issues of separability, the general rule may be departed from:
where each party has had substantial success — in which case the court may make no order as to costs: Hogan v Trustee of the Roman Catholic Church (No 2)  NSWSC 74 at 
where the plaintiff has incurred unnecessary costs — including the unnecessary retainer of senior counsel, or through significant credit issues: Jones v Sutton (No 2)  NSWCA 203 at ; alternatively, the successful party’s costs may be capped: UCPR r 42.4; Nudd v Mannix  NSWCA 32 at –; Re Sherbourne Estate (No 2) (2005) 65 NSWLR 268; see [8-0160], and
where the shortcomings and delinquencies of the unsuccessful party are equalled or exceeded by those of the successful party: Rural & General Insurance Broking Pty Ltd v APRA  ACTSC 67, in which the conduct of the practitioners on both sides, and their clients, was said to be “a sorry affair” and contributed to there being only limited costs orders upon the discontinuance of hopeless proceedings: at  and contributed to there being only limited costs orders upon the discontinuance of hopeless proceedings.
[8-0050] Displacement of the general rule: particular types of proceedings
In some types of proceedings, common law principles, convention, and/or statutory provisions have the consequence that the application of the general rule is qualified, modified or displaced [see Dal Pont at 8.71–8.92].
In probate proceedings, subject to two well-recognised exceptions, the general rule that costs follow the event usually applies, the exceptions being:
where the testator had been the cause of the litigation, and
where the “circumstances led reasonably to an investigation concerning the testator’s will”: Brown v M'Encroe (1890) 11 LR (NSW) Eq 134 at 145-6; Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Perpetual Trustee Co Ltd v Baker  NSWCA 244 at –; Grynberg v Muller; Estate of Bilfeld  NSWSC 350 at ff; Re Estate Late Hazel Ruby Grounds  NSWSC 1311 at ; Trustee for the Salvation Army (NSW) Property Trust v Becker  NSWCA 136 at ; Walker v Harwood  NSWSC 228 at –.
However, this general rule may be displaced by discretionary considerations: Simpson v Hodges  NSWSC 303 at , and in a proper case the costs of both parties may be borne by the estate: Williamson v Spelleken  Qd R 152; or a certain percentage of costs may be borne by the estate: McCusker v Rutter  NSWCA 318.
Even where it is appropriate that the estate bears the costs, the estate does not automatically bankroll the legal costs of every party who wishes to be heard. This needs to be borne in mind by parties who desire to participate in the proceedings but whose interests are already adequately protected — parties and their legal representatives must take reasonable steps to avoid duplicated or unnecessary legal representation: Milillo v Konnecke  NSWCA 109 at –; Re Dowling; sub nom NSW Trustee and Guardian v Crossley  NSWSC 1040. Additionally, orders may be made fixing (or “capping”) the maximum costs, founded on the principle of proportionality: see [8-0160].
Executors acting honestly and with propriety are entitled to costs not recoverable from another party from the estate, on an indemnity basis: Milillo v Konnecke at ; Diver v Neal  NSWCA 54 at ; Warton v Yeo  NSWCA 115: see also [8-0100].
Section 99, Succession Act 2006 provides that the court may order that the costs of proceedings for a family provision order, including costs in connection with mediation, be paid out of the estate or notional estate, or both, in such manner as the court thinks fit. The section also authorises regulations making provision for or with respect to the costs in connection with family provision proceedings, including the fixing of the maximum costs for legal services that may be paid out of the estate or notional estate of a deceased person, and provides that the section and any regulations made under it prevail to the extent of any inconsistency with the legal costs legislation.
It has been said that such proceedings stand apart from cases in which costs follow the event; that costs in family provision cases generally depend on the overall justice of the case; that even in the case of an unsuccessful application, it may be that no order is made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position; and that there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate: Singer v Berghouse  HCA 35 (Gaudron J, refusing an application for security for costs). However, usually success is evaluated in such cases in the ordinary way, and where an application for a family provision order succeeds, the usual order is to the effect that plaintiff’s costs on the ordinary basis and the defendant/executor’s costs on the indemnity basis be paid out of the estate: see Precedent 8.8 at [8-0200]. Where an application fails, usually the plaintiff is ordered to pay the defendant/executor’s costs on the ordinary basis, unless there is some reason, such as failure to better an offer of compromise, for making an indemnity order.
In a successful appeal, the usual order is for costs of both parties to be paid out of the estate: Coates v NTE&A (1956) 95 CLR 494; Re Hall (1959) 59 SR NSW 219; Bowcock v Bowcock (1969) 90 WN (Pt 1) NSW 721; Hutchinson v Elders Trustee Co (1982) 8 Fam LR 267; Hunter v Hunter (1987) 8 NSWLR 573; Churton v Christian (1988) 12 Fam LR 386, sometimes on an indemnity basis: Dehnert v Perpetual Executors (1954) 91 CLR 177; Goodman v Windeyer (1980) 144 CLR 490, although on rare occasions the respondent may be ordered to pay the appellant’s costs: Hughes v NTE&A (1979) 143 CLR 134; typically where it is perceived that the respondent has not acted properly — for example, by giving untruthful evidence: Cooper v Dungan (unrep, 25/3/76, HCA) or by failing to adduce evidence which it was bound to adduce: Dijkhuijs v Barclay (1988) 13 NSWLR 639. In Barnaby v Berry  NSWCA 454, where the appellant failed at first instance but received an enlarged legacy on appeal, the court ordered that all costs be paid out of the estate. In Barns v Barns (2003) 214 CLR 169, where the appellant failed at first instance and on intermediate appeal, upon her ultimate success, all costs were ordered to be paid out of the estate. However, in Blackmore v Allen  NSWCA 162 and Marshall v Carruthers  NSWCA 86, costs followed the event. Each party may be left to bear its own costs where the estate is small: Re Salathiel  QWN 18. See generally de Groot and Nickel, Family Provision in Australia and New Zealand, 5th edn, 2016; and Jvancich v Kennedy (No 2)  NSWCA 397.
De-facto property division
In proceedings in the Family Court, the starting point is that each party “shall bear his or her own costs”, although costs orders may be made in an appropriate case: Family Law Act 1975, s 117. While the NSWCA previously considered that, in claims under the Property (Relationships) Act 1984, “the starting point should be that each party should bear its own costs” (Kardos v Sarbutt (No 2)  NSWCA 206) this approach has now been rejected in favour of the general rule that costs should follow the event: Dunstan v Rickwood (No 2)  NSWCA 266 at –; Baker v Towle  NSWCA 73 at , . When an application for property adjustment is refused, the event will be clear and, upon a straightforward application of r 42.1, the defendant will have the costs of the application unless the court makes some other order; but where an order for adjustment is made, the costs order made will rarely, if ever, depend simply upon which party commenced proceedings, and the “event” will depend on the facts and circumstances, pleadings and issues, in each case: Baker v Towle at –.
The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify doing so: Children and Young Persons (Care and Protection) Act 1998, s 88. Where there are such circumstances, the power extends to awarding indemnity costs: Director-General of the Department of Human Services v Ellis-Simmons  NSWChC 5. No such requirement for “exceptional circumstance” applies before costs orders can be made in review or appellate proceedings in the Supreme Court: Re Kerry (No 2)  NSWCA 194, citing Wilson v Department of Human Services; re Anna (No 2)  NSWSC 545 at .
Land and Environment Court
For costs in the NSW Land and Environment Court, see Dal Pont 8.81–8.88 and Ritchie’s at [42.1.105].
Section 40 Defamation Act 2005 provides that in awarding costs in defamation proceedings, the court may have regard to the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings), and any other matters that the court considers relevant. Unless the interests of justice require otherwise, a court must, if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff, order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff. If defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant, it must order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
[8-0060] Where the general rule does not apply: costs are agreed by the parties independently of the “event”
Leases, mortgages, guarantees, insurance policies and other commercial contracts often contain provisions for costs to be payable by a party in the event of non-performance, often on an indemnity basis: Re Shanahan (1941) 58 WN (NSW) 132; Re Adelphi Hotel (Brighton) Ltd  2 All ER 498; AGC (Advances) Ltd v West (1984) 5 NSWLR 301; Heaps v Longman Australia Pty Ltd  NSWSC 542; State of NSW v Tempo Services Pty Ltd  NSWCA 4 at ; Rail Corp NSW v Leduva Pty Ltd  NSWSC 800 at ; Elphick v Westfield Shopping Centre Management Company Pty Ltd  NSWCA 356 at –. Courts will normally exercise their costs discretion in accordance with the contractual provision: Gomba Holdings (UK) Ltd v Minories Finance Ltd  Ch 171. Indemnity costs will be ordered as a matter of discretion on the basis of a contractual obligation of this kind if the contractual obligation is sufficiently plain and unambiguous: Kyabram Property Investments Pty Ltd v Murray  NSWCA 87 at ; Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2)  NSWCA 171 at –.
[8-0070] Where there is no final judgment: discontinuance and compromise
Dismissal and discontinuance
Where a plaintiff discontinues without the consent of the defendant, or where the plaintiff’s claim is dismissed in whole or in part, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been discontinued or dismissed, unless the court otherwise orders: UCPR rr 42.19 and 42.20; and see Foukkare v Angreb Pty Ltd  NSWCA 335 at ; Australiawide Airlines Ltd v Aspirion Pty Ltd  NSWCA 365; Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd  NSWSC 971; Oberlechner v Watson Wyatt Superannuation Pty Ltd  NSWSC 1435 at ; Norris v Hamberger  NSWSC 785. If the court strikes out a defence, in whole or in part, the defendant must pay the plaintiff’s costs of the proceedings in relation to those matters in respect of which the defence has been struck out, unless the court otherwise orders: UCPR r 42.20(2).
While these rules do not create a presumption, and are merely default provisions, they reflect the general rule that an unsuccessful party should pay the costs of a successful party, and the discontinuing party must make an application to be relieved of the obligation to pay costs, and show some sound positive ground or good reason for departing from the default position: Fordyce v Fordham (2006) 67 NSWLR 497 at ; Bitannia Pty Ltd v Parkline Constructions Pty Ltd  NSWCA 32 at – and – (in which the court also discussed circumstances in which a court might or might not depart from the consequence provided by the rule: at – and –); Ralph Lauren 57 Pty Ltd v Byron Shire Council  NSWCA 107 at –. The discretion to “otherwise order” may be exercised where the discontinuing party has obtained practical extra-curial success; but will generally not be exercised where the plaintiff effectively abandons its claim: Re The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; Cummins v Australian Jockey Club Ltd  NSWSC 254 at . Unsatisfactory conduct of the discontinued proceedings, such as failure to comply with case management requirements (Palmer v Gold Coast Newspapers Pty Ltd  QSC 352) or commencing the abandoned proceedings in circumstances amounting to an abuse of process (Packer v Meagher  3 NSWLR 486 at 500) may found an order that the costs of the defendant be paid on the indemnity basis: see [8-0130].
Where proceedings are commenced in a court contrary to a contractual provision for arbitration or alternative dispute resolution, the proceedings may be stayed or dismissed and the plaintiff ordered to pay the costs: Haniotis v The Owners Corporation Strata Plan 64915 (No 2)  NSWDC 39, and the cases summarised there. As to whether this extends to indemnity costs, see [8-0130].
Where proceedings are resolved by compromise without a hearing on the merits, but the parties cannot agree on the question of costs, courts avoid embarking on a trial to determine only the question of costs, and ordinarily will make no order as to costs, with the intent that each party bears its own costs, unless it appears that one party has effectively capitulated, or that one party has acted unreasonably in bringing or defending the proceedings: Re The Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; Harkness v Harkness (No 2)  NSWSC 35 at . In rare cases it may be appropriate to make an order for costs without a contested hearing on the merits, if the court can be almost certain which party would have succeeded: Ferguson v Hyndman  NSWSC 538; see also Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW  NSWCA 129; Indyk v Wiernik  NSWSC 868; Oberlechner v Watson Wyatt Superannuation Pty Ltd  NSWSC 1435 at –; Foley v Australian Associated Motor Insurers Ltd  NSWSC 778; Muhibbah Engineering (M) BHD v Trust Company Ltd  NSWCA 205.
[8-0080] Where there are multiple parties
Prima facie, all the unsuccessful parties should bear the successful party’s costs. Unless the costs order specifies otherwise, an order for costs against two or more parties renders each of them jointly and severally liable to pay the relevant costs: Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd  NSWSC 670, citing Ryan v South Sydney Junior Rugby League Club Ltd  2 NSWLR 660 at 663. However the court may, as a matter of discretion, apportion liability between multiple parties: Mulcahy v Hydro-Electric Commission (unrep, 2 July 1998, FCA). This is more likely to be appropriate when one of the multiple parties conducts a separate or distinct case.
Where there are multiple successful defendants, whose interest is identical and there is no possible conflict of interest between them, and who are separately represented, the court will not normally allow more than one set of costs; but this is subject to at least three provisos:
If a conflict of interest appears possible but unlikely, the defendants should make any necessary enquiries from the plaintiff as to the way in which their case is to be put if this would resolve the possibility of conflict between defendants: Re Lyell  VLR 207.
There may be circumstances in which, although the defendants are united in their opposition to the plaintiff, their relationship to each other might be such that they would be acting reasonably in remaining at arm’s length during the general course of litigation.
Even if defendants are acting reasonably in maintaining separate representation for some time or for some purposes, they may still be deprived of part of their costs if they act unreasonably by duplicating costs on any particular matter or at any particular time: Statham v Shephard (No 2) (1974) 23 FLR 244 at 246–247; Milillo v Konnecke  NSWCA 109 at –.
Where the plaintiff succeeds against one defendant but not the other, and both are jointly represented by the same solicitors and counsel, there is a “rule of thumb” that the successful defendant should recover a proportionate share of the “common” costs referable to the claim pressed against each defendant, as well as any associated only with the claim against the successful defendant. However, while this rule of thumb is convenient for the “ordinary case”, it is not to be automatically applied in every case: King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2)  NSWCA 204 at –, citing Korner v H Korner & Co Ltd  Ch 10 at 17.
Multiple plaintiffs must be represented by the same solicitor: Herbert v Badgery (1893) 14 LR (NSW) Eq 321; Lewis v Daily Telegraph Ltd (No 2) [ 1964] 2 QB 601, unless (as not uncommonly occurs in family provision proceedings) the court, balancing questions of costs and the problems that might arise with a lawyer acting for conflicting interests, considers that justice requires separate representation. Thus, absent leave, an insured and insurer cannot have separate representation, even if there are “insured” and “uninsured” elements to the claim: Carter v Marine Helicopters Ltd (1995) 9 ANZ Ins Cas 61-299 at 76-347 (New Zealand High Court), applied by Einstein J in Sydney Airport Corporation Pty Ltd v Baulderstone Hornibrook Engineering Pty Ltd  NSWSC 1106 at . See generally Elphick v Westfield Shopping Centre Management Company Pty Ltd  NSWCA 356 at –. Where leave is granted, it may be conditioned on only one set of costs being recoverable.
Bullock orders and Sanderson orders
Where the plaintiff succeeds against one or more defendants but fails against others, application of the general rule that costs follow the event would require the plaintiff to pay the costs of the successful defendant(s), despite having won the case. While this may sometimes be appropriate, there are circumstances in which the court may make special orders so that the costs of the successful defendant(s) are ultimately borne, indirectly or directly, by the unsuccessful defendant/s: Gould v Vaggelas (1985) 157 CLR 215. A “Bullock order” requires the unsuccessful defendant(s) to reimburse the plaintiff for any costs the plaintiff has to pay to the successful defendant(s): Bullock v London General Omnibus Company  1 KB 264; (see Precedent 8.3 at [8-0200]). A “Sanderson order” requires the unsuccessful defendant/s to pay the costs of the successful defendant/s, leaving the plaintiff out of the process entirely, and has obvious advantages for a plaintiff in cases of an insolvent unsuccessful defendant, as well as eliminating administrative and procedural steps: Sanderson v Blyth Theatre Co  2 KB 533; Coombes v Roads and Traffic Authority (No 2)  NSWCA 70 at ; see Precedent 8.4 at [8-0200].
Bullock and Sanderson orders should only be made where it was reasonable and proper for the plaintiff to join the defendant(s) against which it failed: Gould v Vaggelas at 230, 247 and 260; Stevedoring Industry Finance Committee v Gibson  NSWCA 179, citing Lackersteen v Jones (No 2) (1988) 93 FLR 442; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at –, –; Nominal Defendant v Swift  NSWCA 56; Council of the City of Liverpool v Turano (No 2)  NSWCA 176 at . That requirement will typically be satisfied where claims against two defendants are interdependent, or where it is necessary to join both in circumstances where only one may be liable. Conversely, it will not be satisfied where the successful defendant is joined only for the purpose of spreading the potential net of liability so as to obtain an additional defendant who might be able to afford to pay: Raulfs v Fishy Bite Pty Ltd  NSWCA 135 at –. However, there is no additional requirement that the causes of action must be substantially connected or interdependent: Nationwide News Pty Ltd v Naidu (No 2)  NSWCA 71 at –; ACQ v Cook (No 2) (2008) 72 NSWLR 318.
A second precondition is that there must also have been something in the conduct of the unsuccessful defendant that makes it appropriate to make the order: Gould v Vaggelas at 230 per Gibbs CJ; Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56,605; Stevedoring Industry Finance Committee v Gibson  NSWCA 179, citing Lackersteen v Jones (No 2) (1988) 93 FLR 442; Almeida v Universal Dye Works Pty Ltd (No 2)  NSWCA 156; Coombes v Roads and Traffic Authority (No 2) at ff; Council of the City of Liverpool v Turano (No 2)  NSWCA 176 at ; Stephens v Giovenco (No 2)  NSWCA 144 at ; Sneddon v Speaker of the Legislative Assembly  NSWSC 842 at , citing Furber v Stacey  NSWCA 242 at –; Simmons v Rockdale City Council (No 2)  NSWSC 1275. This requires that the unsuccessful defendant have done something, beyond a mere denial of liability, that makes it fair to impose on it liability for the costs of the successful defendant — such as creating circumstances of uncertainty as to who is the proper defendant: Dominello v Dominello (No 2)  NSWCA 257 at –, citing Roads and Traffic Authority v Palmer (No 2)  NSWCA 140 at . This “something more” need not amount to “misconduct” but it must be conduct sufficient to make it fair to visit the liability on it: Bostik Australia Pty Ltd v Liddiard (No 2)  NSWCA 304 at . Examples of such conduct can include the making of a “very reasonable” offer to the unsuccessful defendant, no offer being made by the unsuccessful defendant, and the length and costs of the proceedings had the unsuccessful defendant not defended the case: Stephens v Giovenco; Dick v Diovenco (No 2)  NSWCA 144 at . However it can include conduct that predates joinder, so long as that conduct is relevant to the fairness, or reasonableness, of making a costs order against the unsuccessful defendant: Almeida v Universal Dye Works Pty Ltd (No 2) at .
Where a defendant has identified a concurrent tortfeasor (for the purposes of Civil Liability Act 2002, s 35A), and the plaintiff joins that party, costs issues are determined in accordance with s 35A, whether or not the plaintiff succeeds against the alleged concurrent tortfeasor: Dymocks Book Arcade Pty Ltd v Capral Ltd  NSWSC 195 at ; Sydney Water Corporation v Asset Geotechnical Engineering Pty Ltd (No 2)  NSWSC 1604 at –.
A defendant/cross-claimant who fails against a cross-defendant, whether or not it has succeeded against the plaintiff, is generally ordered to pay the cross-defendant’s costs: Dal Pont at [11.33].
Where the plaintiff fails against the defendant, and the defendant’s cross-claim against a third party consequently fails, the plaintiff may, but will not necessarily, be ordered to pay the cross-defendant’s costs, or indemnify the defendant in respect of the costs it is required to pay the cross-defendant. However, although a defendant and a cross-defendant are adversarial parties, and a plaintiff resisting an order for costs on the basis of identity of their interests has an evidentiary onus to negative any conflict of interests, where there is a substantial identity of interests, the cross-defendant should co-operate with the defendant to avoid duplication of effort and costs, and the plaintiff may be relieved of part or all of those costs if the cross-defendant fails to do so: Furber v Stacey  NSWCA 242 at – (cross-defendant awarded only one-quarter of costs against an unsuccessful plaintiff).
It is within the legitimate scope of the power under CPA s 98 to award costs in favour of a plaintiff against a cross-defendant not joined by that plaintiff, where the conduct of that cross-defendant was the real cause of the litigation: Vameba Pty Ltd v Markson  NSWCA 266.
[8-0090] Self-represented litigants (including lawyers)
Legal costs may only be recovered by a party in relation to costs of legal practitioners. However, a litigant in person may recover reasonably incurred disbursements and witness expenses, including costs and disbursements for legal work done by others: Malkinson v Trim  2 All ER 356, but not travelling expenses or loss of earnings: Cachia v Hanes (1994) 179 CLR 403; Dal Pont 7.28–7.29. Ultimately, this is a question of quantification on assessment, not one of liability (for costs), and unless it is apparent that there could be no entitlement, there is no reason why an order for costs should not be made in favour of a successful self-represented litigant, leaving it to the assessor to quantify the precise entitlement.
Previously, legal practitioners acting on their own behalf in legal proceedings were not in the same position as a litigant in person, under the “Chorley exception”: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872, considered in Guss v Veenhuizen (No 2) (1976) 136 CLR 47; see also Wang v Farkas (2014) 85 NSWLR 390; Ada Evans Chambers Pty Ltd v Santisi  NSWSC 538 at –. However, in Bell Lawyers Pty Ltd v Pentelow  HCA 29, the High Court said that the exception was not only anomalous, but exalted the position of legal practitioners in the administration of justice to such an extent that it was an affront to the fundamental value of equality of all persons before the law. As such, it was held that the Chorley exception should not be recognised as a part of the common law of Australia.
[8-0100] Representative, nominal and inactive parties
Generally speaking, any party to litigation, including those who act in a representative capacity, is amenable to a costs order, but representative parties are often entitled to indemnity from the relevant estate or fund.
Ordinarily, a tutor for a disabled party is personally liable for any costs order against that party; indeed, one of the reasons why a tutor is required is so that there is a person answerable for costs: Yakmore v Handoush (No 2) (2009) 76 NSWLR 148 at ; Dal Pont at 22.68. However, although one of the reasons for the appointment of a tutor for a disabled person is to have a person on the record that is personally liable for the costs of the litigation, that is not the sole function or purpose of the appointment of the tutor, which includes the protection of the person with the disability and of the processes of the court: Smith v NRMA Insurance Ltd  NSWCA 250 at –, citing NSW Ministerial Insurance Corporation v Abuafoul (1999) 94 FCR 247 at –, and Goddard Elliott (a firm) v Fritsch  VSC 87 at . An order protecting a tutor from personal liability for costs may be made as an incidental term of an order appointing a tutor under UCPR r 7.18(1)(b), or pursuant to the power conferred by UCPR r 2.1, or in the inherent power in the parens patriae jurisdiction. Under UCPR r 42.24, if the court appoints a solicitor to be the tutor of a person under legal incapacity in connection with any proceedings, the court may order that the costs incurred by the solicitor in performance of the duties of tutor be paid by the parties to the proceedings or any of them, or out of any fund in court in which the person under legal incapacity is interested. The court may make orders for the repayment or allowance of the costs as the case requires.
Executors, trustees and mortgagees
Under UCPR r 42.25, a person who is or has been a party to proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs of the proceedings, in so far as they are not payable by any other person, out of the fund held by the trustee or the mortgaged property. The court may, however, otherwise order if the trustee or mortgagee has acted unreasonably, or the trustee has in substance acted for its own benefit rather than for the benefit of the fund.
If a legal personal representative acts properly, their costs and/or the costs which they are ordered to pay in an unsuccessful defence of the estate may be ordered to be paid out of the estate: Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709–710; see generally Halsbury’s Laws of England, 4th ed, vol 17, pars 917–919, vol 37, par 721. However, if, in conducting a proceeding, the executor is not acting merely in that capacity but in substance prosecuting or defending his or her own interests, that principle does not apply: Nowell v Palmer (1993) NSWLR 574 at 581–582. These principles apply not only to personal representatives but to fiduciaries generally: Miller v Cameron (1936) 54 CLR 572 at 578–579; Lewis v Nortex Pty Ltd (in liq)  NSWSC 480 at .
An executor who commences or defends an action in the capacity of executor is ordinarily entitled to be indemnified out of the estate for the costs incurred in doing so, even if the litigation is unsuccessful, the executor’s conduct is found to have been mistaken, and the other party in the litigation is held to be entitled to an order for costs: Drummond v Drummond  NSWSC 923 at . As a rule, a trustee is allowed their costs out of the trust estate if their conduct has been honest, even though it may have been mistaken: Miller v Cameron at 578; In re Beddoe; Downes v Cottam  1 Ch 547 at 562; see also Re Weall; Andrews v Weall (1889) 42 Ch D 674 at 677, where Kekewich J spoke of the “tenderness which the Court is anxious to exhibit towards trustees honestly exercising discretion in discharge of their duties, often difficult and still more often thankless”, and Re Jones; Christmas v Jones  2 Ch 190 at 197, where the same judge said that “a man who fulfils the difficult duties of an administrator, executor or trustee is, in common sense and common justice, entitled to be recouped to the very last penny everything that he has expended properly — that is to say, without impropriety — in his character of administrator, executor or trustee”.
However, this does not apply where the executor has acted improperly: Drummond v Drummond at –; In re Beddoe; Downes v Cottam  1 Ch 547 at 562. Cases of impropriety include an executor taking or defending proceedings in breach of trust, or conducting the proceedings in such a way that the court, on a general view of the case, regards the executor’s conduct as “not honestly brought forward”, or “where the claim is of monstrous character, that is, one which no reasonable man could say ought to have been put forward”: Re Jones  2 Ch 190 at 198; or where the trustees acted without “reasonable prudence”: Re Weall at 678–679.
The rule relates only to costs incurred in the administration and distribution of the estate, as distinct from costs incurred by an executor in furtherance of a personal interest: Drummond v Drummond at ; Miller v Cameron at 578–579; Re Jones  2 Ch at 197–198; Plimsoll v Drake (No 2) (unrep, 8/6/95, SCT). Executors who pursue personal interests in litigation are “not fighting for the estate any more than if they were not executors at all”: Skrimshire v Melbourne Benevolent Asylum (1894) 20 VLR 13 at 18. Thus an executor who prosecutes or defends proceedings in the capacity of creditor or beneficiary of the estate rather than in the capacity as executor is not entitled to recoup the costs of the litigation from the estate simply because they are also an executor. A trustee who defends an action for their removal may be representing their own interests and not those of the trust estate: Miller v Cameron at 578–579, though this is not necessarily invariably so; likewise one who unsuccessfully demands a release before distributing the trust estate to the beneficiaries: Plimsoll v Drake (No 2).
Analogous principles apply to liquidators in relation to proceedings in which they participate in their own name: Re Buena Vista Motors Pty Ltd (In Liq) and the Companies Act  1 NSWLR 72, in which Street J ordered a liquidator who brought an unsuccessful claim to pay the opponents’ costs but to be indemnified out of the company’s assets since, although “the claim had been unsuccessful, it could not be characterized as frivolous or vexatious. Nor could the liquidator be said to have been acting unreasonably in bringing the claim forward for litigation” (at 73). See also Lewis v Nortex Pty Ltd (in liq)  NSWSC 480 at ; the same principles apply also in respect of proceedings which they conduct in the name of the company: Mead v Watson as Liquidator for Hypec Electronics  NSWCA 133 at  ff; see also Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; Joubert v Campbell Street Theatre Pty Ltd (in liq)  NSWCA 302. A liquidator whose determination is challenged and who, rather than taking no active part in the proceedings, actively defends his or her decision, becomes an adverse party and is liable for costs: Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332 at 341; Lewis v Nortex Pty Ltd (in liq) at .
A liquidator who successfully contests an allegation of impropriety is entitled to costs out of the company funds, to the extent that they are not recoverable from the other party: National Trustees Executors and Agency Co of Australasia Limited v Barnes (1941) 64 CLR 268 at 279; Expo International Pty Ltd v Chant (No 2) (1980) 5 ACLR 193 at 197–198; Lewis v Nortex Pty Ltd (in liq) at .
Ordinarily, a submitting party who genuinely takes no part in the proceedings will not be ordered to pay costs: Highland v Labraga (No 3)  NSWSC 871 at –. However, this may be otherwise where the submitting party does in fact take some active part in the proceedings: Hillig v Darkinjung Pty Ltd (No 2)  NSWCA 147 at ; Hornsby Shire Council v Valuer General of NSW  NSWSC 1281 at –; see also Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 273, where the submitting party, while not actively opposing the orders sought, did not consent to them and thus occasioned the incurring of additional costs and was ordered to pay costs; cf Lou v IAG Limited  NSWCA 319 where, in similar circumstances, by majority, no costs order was made. Similarly, in an application for preliminary discovery, it may be appropriate not to order costs against an unsuccessful but “innocent” respondent who does not oppose the application: Totalise plc v Motley Fool Ltd  1 WLR 1233; Bio Transplant Inc v Bell Potter Securities Ltd  NSWSC 694; cf Airways Corporation of New Zealand v Koenig  NSWSC 521, where the application was opposed.
The court may make an order for costs against a relator: Wentworth v Attorney-General (NSW) (1984) 154 CLR 518 at 524.
An order may be made against an amicus curiae in an exceptional case: Dal Pont at 22.75-76.
All participants in interpleader proceedings may claim their costs from the fund, where they do no more than present evidence and reasonable arguments as to how that fund should be distributed. Where their involvement goes further and amounts to raising issues that add to the costs of the litigation, on which they are unsuccessful, they may be deprived of costs on those issues, or may be ordered to pay costs: Westpac Banking Corp v Morris (unrep, 2/12/98, NSWSC).
The power to make costs orders extends to orders against non-parties: Knight v FP Special Assets Ltd (1992) 174 CLR 178.
Non-party orders were formerly rare, but the repeal of UCPR r 42.3 (formerly Supreme Court Rules 1970, Pt 52A r 4), removed restrictions on the making of costs orders against non-parties: Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652 at –. However, the power is to be exercised with restraint: Yu v Cao  NSWCA 276 at –; HM&O Investments Pty Ltd (in Liq) v Ingram  NSWSC 1778 at –, and having regard to principles of procedural fairness: Flinn v Flinn  3 VR 712, which sets out the procedure for notice to the non-party.
Most cases of costs orders against a non-party involve circumstances in which the non-party has effective control of the litigation: Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 (litigation funder); Selig v Wealthsure Pty Ltd (2015) 255 CLR 661(professional indemnity insurer); Younan v GIO General Limited (ABN 22 002 861 583) (No 2)  NSWDC 149 (plaintiff’s de facto partner the true plaintiff); McVicar v S & J White Pty Ltd (No 2) (2007) 249 LSJS 110 at –; Naomi Marble & Granite Pty Ltd v FAI General Insurance Co Ltd (No 2)  1 Qd R 518 (directors of a corporate party). However, such control is usually not of itself sufficient to warrant such an order; there must be something additional in the conduct of the non-party that makes it just that it should bear the costs: Naomi Marble & Granite Pty Ltd v FAI General Insurance Co Ltd (No 2) (fraudulent insurance claim); Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd  NSWCA 283 and Melbourne City Investments Pty Ltd v Leightons Holdings Limited  VSCA 235 (abuse of process). Orders will also been made against a non-party (such as a solicitor) who conducts litigation in the name of another without proper authority: Hillig v Darkinjung (No 2)  NSWCA 147 at ; and against non-parties who by some delinquency increase the costs, such as by failing to attend court in answer to a subpoena: see UCPR r 42.27.
These categories are not closed: FPM Constructions v Council of the City of Blue Mountains  NSWCA 340 at  (per Basten JA); see also Yates v Boland  FCA 1895; Gore v Justice Corporation Pty Ltd; Kebaro Pty Ltd v Saunders  FCAFC 5 (approved by the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2)  All ER (D) 420 (Jul); and see Leeming JA’s summary of the principles in PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM  NSWCA 168 at –.
Legal aid providers
While courts are reticent to order costs against government bodies such as legal aid providers, such parties may be subject to costs orders in an extreme case: Collins and the Victorian Legal Aid Commission (1984) FLC ¶91-508; Marriage of Millea and Duke (1992) 122 FLR 449.
[8-0120] Legal practitioners
The Supreme Court has inherent power to make costs orders against legal practitioners, derived from its supervisory jurisdiction: Myers v Elman  AC 282; Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at –; Re Felicity, FM v Secretary Department of Family and Community Services (No 4)  NSWCA 19 at –. The object of the court’s inherent power is primarily compensatory, so as to indemnify or compensate, and thus protect, the party or parties who have suffered: Dal Pont at 23.2; Myers v Elman at 289. While the principles that inform the exercise of this inherent power should not be conflated with those relevant to the statutory powers of the court contained in CPA s 99 and Legal Profession Uniform Law Application Act 2014, Sch 2, to order a legal practitioner to pay a party’s costs (Whyked Pty Ltd v Yahoo 7 Pty Ltd  NSWSC 477 at –), similar circumstances are likely to be relevant in both cases. As to the continued existence of the Supreme Court’s inherent power, see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4)  NSWCA 19 at –; King v Muriniti (2018) 97 NSWLR 991.
Civil Procedure Act 2005, s 99
Section 99 empowers the court to make a “wasted costs order” against a legal practitioner personally, where costs have been incurred by serious neglect, incompetence or misconduct of the practitioner, or improperly or without reasonable cause in circumstances for which the practitioner is responsible. This statutory power is available to the District Court and Local Court, which do not enjoy inherent jurisdiction, as well as to the Supreme Court : Knaggs v J A Westaway & Sons Pty Ltd (1996) 40 NSWLR 476 at 485.
As to the construction of s 99 and the “voluminous case law” with respect to the making of costs orders against legal practitioners in different statutory contexts (which was partially cautioned against), see Re Felicity at – and Nadarajapillai v Naderasa (No 2)  NSWCA 209 at –. The court has a right and a duty to supervise the conduct of its solicitors, and to visit with consequences any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which the solicitor is engaged professionally. The jurisdiction is exercised where it is demonstrated that the solicitor has failed to fulfil their duty to the court and to realise their duty to aid in promoting in their own sphere the cause of justice. The order is for payment of costs thrown away or lost because of the conduct complained of and is frequently exercised in order to compensate the opposite party in the action. Such an order may be made on the indemnity basis: Mitry Lawyers v Barnden  FCA 918 at .
Where a solicitor is employed by another, the client’s retainer is with the employer, and regardless of who is on the record, the firm may be liable: Kelly v Jowett (2009) 76 NSWLR 405; at –; Re Bannister & Legal Practitioners Ordinance 1970-75; Ex Parte Hartstein (1975) 5 ACTR 100; Re Fabricius & McLaren and Re Legal Practitioners Ordinance 1970 (1989) 91 ACTR 1; Knaggs v J A Westaway & Sons Pty Ltd. Thus the jurisdiction may be exercised even where there has been no personal complicity by the solicitor charged: Kelly v Jowett at –, ; Re Jones (1870) 6 Ch App 497; Myers v Elman  AC 282; Harley v McDonald  UKPC 18;  2 AC 678.
Conduct which has been held to justify an order that a practitioner personally pay costs includes:
commencing or conducting proceedings which are an abuse of process: Young v R (No 11)  NSWLEC 34
raising untenable defences, for the purpose of delay: Deputy Commissioner of Taxation v Levick  FCA 1580; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation  HCA 56
signing a certificate on a false affidavit of discovery: Myers v Elman  AC 282 (a case involving the inherent power)
repeatedly putting untenable submissions: Buckingham Gate International v ANZ Bank Ltd  NSWSC 946 at –
attempting to re-agitate previously decided issues: Vasram v AMP Life Ltd  FCA 1286; see also Gersten v Minister for Immigration and Multicultural Affairs  FCA 922; Kendirjian v Ayoub  NSWCA 194 at –
prosecuting an appeal which has no prospects of success: Nadarajapillai v Naderasa (No 2)  NSWCA 209 at 
acting in ignorance of the rules: Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA (unrep, 9/6/89, HCA), and
unpreparedness, resulting in a hearing date being vacated, or in time being wasted during the hearing: Stafford v Taber (unrep, 31/10/94, NSWCA).
Breach of the practitioner’s duty to ensure proceedings are conducted efficiently and expeditiously may sound in a personal costs order: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2)  NSWCA 12 at -; Ashmore v Corporation of Lloyds  2 All ER 486; Whyte v Brosch (1998) 45 NSWLR 354 (late submissions). In considering the exercise of the discretion under s 99, the court may take into account a legal practitioner’s failure to comply with the obligations imposed by CPA ss 56(3), (4) and (5), which require the parties and their representatives to assist the court to further the just, quick and cheap resolution of the real issues in the proceedings: Kendirjian v Ayoub at –. The obligations of legal practitioners to conduct litigation reasonably are described in Ken Tugrul v Tarrants Financial Consultants Pty Ltd ACN 086 674 179 (No 5)  NSWSC 437 at –.
Before such an order is made, the practitioner must first be given a reasonable opportunity to be heard: CPA s 99(2). The court may refer the matter to a costs assessor for inquiry and report: CPA s 99(3).
Legal Profession Uniform Law Application Act 2014, Sch 2
Schedule 2, cl 5 LPULAA, which applies in all courts, permits the making of costs orders against solicitors personally where legal services are provided in a claim for damages “without reasonable prospects of success”. The court is empowered to order that the practitioner repay costs to a party in the proceedings, or otherwise indemnify that party in respect of their costs. The exercise of the power remains discretionary: Lemoto v Able Technical Pty Ltd at , and the due administration of justice should not be impaired by the “too liberal exercise” of this power: Lemoto at . Where a practitioner believes he or she has available material providing a proper basis for alleging a fact, provided the belief was reasonable, the proceedings cannot be said to have been commenced “without reasonable prospects of success”: Fowler, Corbett & Jessop v Toro Constructions Pty Ltd  NSWCA 178 at –. Practitioners will be exposed to liability only when their belief that the material to support the claim “unquestionably fell outside the range of views which could reasonably be entertained” as to the objective justification for the proceedings: Lemoto at –, approving the “fairly arguable” test proposed by Barrett J in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284.
However, the requirement that the practitioner have a “reasonable belief” is a continuing one: see Lemoto at , so that if circumstances change as a result of which the belief becomes no longer reasonable, then continuing to prosecute a claim may attract liability: Eurobodalla Shire Council v Wells  NSWCA 5 at  (order made under the prior equivalent of this clause: s 348 of the Legal Profession Act 2004, where barrister and solicitor were found “reckless” in continuing to prosecute an appeal; see also Nadarajapillai v Naderasa (No 2) at .
The practitioner must be afforded procedural fairness before such an order is made: Lemoto at ff; see also Mitry Lawyers v Barnden at . The appropriate procedure for the making of an application and the giving of notice to the practitioner, is described in Lemoto at – and – and involves a three-stage process of some complexity: De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 5)  NSWDC 8 at –.
[8-0130] Basis for assessment: ordinary or indemnity costs
In NSW, two bases for costs orders are now recognised. CPA s 98(1)(c) provides that the court may award costs on the ordinary basis or on the indemnity basis. The ordinary basis subsumes what was formerly the common fund basis, and the indemnity basis what was formerly the solicitor-client basis, so that, at least in NSW, there is no longer any distinction, as between parties, between costs on the solicitor/client basis and costs on the indemnity basis. Although in Firth v Hale-Forbes (No 2)  FamCA 814 at – a distinction between the two was recognised, the terms are widely regarded as interchangeable: Rapuano (t/as RAPS Electrical) v Karydis-Frisan  SASCFC 93 at –; Secure Funding Pty Ltd v StarkSecure Funding Pty Ltd v Conway  NSWSC 1536 at ; Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2)  NSWCA 171 at . The CPA and UCPR contain no reference to the common fund basis or the solicitor-client basis.
Absent special order, a costs order implicitly contemplates costs assessed on the “ordinary” basis. On the ordinary basis, a party is entitled to recover “a fair and reasonable amount” for the legal costs and disbursements that were reasonably incurred in the conduct of the proceedings: LPULAA, ss 74–80; see also UCPR r 42.2 and CPA s 3.
The court may order that costs be assessed on the indemnity basis. “Indemnity basis” means the basis set out in r 42.5, which, in any case other than where costs are payable out of property held or controlled by a person who is party to the proceedings, provides that all costs are to be allowed other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount.
The discretion to award indemnity costs must be exercised judicially: Mead v Watson  NSWCA 133 at  and with caution: Leichhardt Municipal Council v Green  NSWCA 341 at ; Ng v Chong  NSWSC 385 at . For those reasons the discretion should be the subject of careful reasoning: Degmam Pty Ltd (In Liq) v Wright (No 2)  2 NSWLR 354. Although it has been said that there is no fixed rule or rationale as to when an indemnity order might be made (Harrison v Schipp  NSWCA 13 at ), except that it requires a “sufficient or unusual feature” (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–234), such an order is appropriate where the party entitled has been wantonly or recklessly caused to incur costs. That will often be the case where the party liable is guilty of some “relevant delinquency”: Oshlack v Richmond River Council (1998) 193 CLR 72 at . This does not mean moral delinquency or some ethical shortcoming, but “delinquency” bearing a relevant relation to the conduct of the case: Ingot Capital Investment v Macquarie Equity Capital Markets Ltd (No 7)  NSWSC 199 at ; Liverpool City Council v Estephan  NSWCA 161 at . As to the relevant principles relating to the making of indemnity costs orders, see the summary in In the Matter of Indoor Climate Technologies Pty Ltd  NSWSC 356 at . An award of indemnity costs remains compensatory and not punitive: Hamod v State of NSW  FCAFC 97. A formal warning of an intention to claim indemnity costs may enhance the prospects of obtaining one: Huntsman Chemical Co Aust Ltd v International Pools Aust Pty Ltd (1995) 36 NSWLR 242, citing Insurers’ Guarantee Fund NEM General Insurance Association Ltd (In Liq) v Baker (unrep, 10/2/95, NSWCA). Such warnings should not be lightly made.
The power to make an indemnity costs order is an important case management tool, as it promotes the making of settlement offers and discourages the litigation of cases where there are no reasonable prospects of success (Chaina v Alvaro Homes Pty Ltd  NSWCA 353 at ), or where a reasonable offer of settlement has been made. The following are the most common circumstances in which such orders are made, but the categories are not closed: Colgate-Palmolive Pty Ltd v Cussons at 257.
A party who commences, continues or defends proceedings which have no prospect of success, such as where the claim (or defence) is “without substance”, “groundless”, “fanciful or hopeless” or so weak as to be futile, may be ordered to pay the other party’s costs on the indemnity basis: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2)  NSWCA 12 at ; Hillebrand v Penrith Council  NSWSC 1058 (limitation period obviously expired). It is not a necessary condition that the party responsible be impugned with a collateral or improper purpose: J-Corp P/L v Australian Builders Labourers Federation Union of Workers (No 2)  FCA 70 at . However, mere weakness of an arguable case is insufficient to warrant an exercise of the discretion to award indemnity costs: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542.
Abuse of process
Costs may be awarded on an indemnity basis where the proceedings amount to an abuse of process: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362, such as where they are commenced other than in good faith, or for an ulterior or collateral purpose: Palmer v Gold Coast Newspapers Pty Ltd  QSC 352; Packer v Meagher  3 NSWLR 486 at 500.
Unreasonable conduct or “relevant delinquency”
This covers a wide range of conduct, both leading to and in the course of the conduct of the proceedings. Evidence of actual misconduct is not required. Examples of the former include unfounded allegations of fraud or improper conduct: Maule v Liporoni (No 2)  NSWLEC 140 at ; refusal to withdraw an improper caveat: Martin v Carlisle  NSWSC 1276; deliberate or high-handed conduct: Rouse v Shepherd (No 2) (1994) 35 NSWLR 277. Instances of the latter include failure to provide proper discovery: Masha Nominees Pty Ltd v Mobil Oil Australia Pty Ltd (No 2)  VSC 56 at –; making multitudinous amendments: Qantas Airways Ltd v Dillingham Corporation Ltd (unrep, 14/5/87, NSWSC); behaviour which causes unnecessary anxiety, trouble or expense, such as failure to adhere to proper procedure: FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384; disregard of court orders: O’Keefe v Hayes Knight GTO Pty Ltd  FCA 1559 at ; perverse persistence by an unrepresented litigant with a hopeless application: Rose v Richards  NSWSC 758; and unnecessarily prolonging the proceedings: Degmam Pty Ltd (in liq) v Wright (No 2)  2 NSWLR 354 at 358.
Fraud and misconduct
A party against whom serious misconduct is established may be ordered to pay costs on the indemnity basis, such as fraud: Gate v Sun Alliance Ltd (1995) 8 ANZ Ins Cas ¶61-251 at 75,817–75,818; perjury or contempt: Berkeley Administration Inc v McClelland  FSR 565 at 568–569; Ivory v Telstra Corporation Ltd  QSC 102 or other dishonest conduct: Vance v Vance (1981) 128 DLR (3d) 109 at 122.
Offers of compromise and Calderbank letters
A party who fails to better an offer of compromise is liable to pay indemnity costs from the date of the offer unless the court otherwise orders: UCPR r 42.13–42.15. Failure to accept a Calderbank offer which is not bettered may have similar consequences, although in such a case the consequences are discretionary and do not flow from the rules; see “Offers of compromise and Calderbank letters” at [8-0030].
Arbitration or dispute resolution clauses
There are two lines of authority as to whether there is a presumption that a party who unsuccessfully challenges an order for referral or stay where there is an arbitration or dispute resolution clause should pay indemnity costs:
in favour of indemnity costs: A v B (No 2)  1 All ER (Comm); Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd  WASC 10 (S) at 
against indemnity costs: Ansett v Malaysian Airline System (No 2)  VSC 156 at ; John Holland Pty Ltd v Kellog Brown & Root Pty Ltd (No 2)  NSWSC 564 at –; In the matter of Ikon Group Ltd (No 3)  NSWSC 982; Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [No 2]  FCA 1046.
The controversy has not yet been resolved by an intermediate appellate court, but the weight of authority in Australia favours the latter view: see Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd  WASC 52 (S) at –, holding that while commencement of proceedings in breach of an arbitration agreement may be a relevant factor in exercising the court’s discretion to award costs, there is no justification for a general rule that costs should be awarded on an indemnity basis where proceedings are commenced in breach of an arbitration agreement.
[8-0140] Costs orders may be made at any stage of the proceedings
By CPA s 98(3), an order as to costs may be made at any stage of proceedings, or after conclusion of the proceedings.
Security for costs
In certain circumstances, generally involving a risk that a costs order against the plaintiff, if unsuccessful, may not be enforceable, a defendant (or cross-defendant) may apply for security for costs. At the conclusion of the litigation, the security is paid out to the party entitled to costs: The “Bernisse” and The “Elve”  P 1; Huon Shipping and Logging Co Ltd v South British Insurance Co Ltd  VLR 216; see also Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd  NSWCA 187 as explained by Hamilton J in Lym International Pty Ltd v Chen  NSWSC 167 at –); Dal Pont at 28.65. A defendant intending to apply for security for costs should generally do so promptly after the institution of proceedings. For security for costs, see [2-5900]ff.
In some classes of litigation, of which matrimonial proceedings are the paradigm, a party unable to fund proceedings may apply for a preliminary costs order, to place them in funds to enable them to conduct the proceedings. Such an order is taken into account in the final relief: see Breen v Breen (unrep, 7/12/90, HCA); Parker v Parker (unrep, 4/8/92, NSWSC).
The disposition of an interlocutory application is usually a discrete event in proceedings, and typically involves consideration of the costs of the application. For interlocutory costs orders, see [8-0150].
When the trial is adjourned or aborted
The adjournment or abortion of a trial may require consideration of the costs thereby occasioned. Where a trial has been aborted and a new trial is ordered, the general rule is that the costs of the first trial await the result of the retrial, as costs in the cause: Brittain v Commonwealth of Australia (No 2)  NSWCA 427 at ; Jaycar Pty Ltd v Lombardo  NSWCA 284 at . However, it is not a prerequisite for departing from such a course that the party seeking a costs order demonstrate wrongdoing was responsible for the trial’s early termination: Nudrill Pty Ltd v La Rosa  WASCA 158 at ; Brittain v Commonwealth of Australia (No 2) at . Whether any special costs order is necessary if a trial is adjourned part-heard will depend on the facts of the case: Canturi Corporation Pty Ltd v Gagner Pty Ltd  NSWDC 151.
Upon final judgment
In a straightforward case, the trial judge may deal with the question of costs in the substantive judgment. Such a course is desirable, where the prima facie costs order is fairly clear, because it may avoid the time and costs of a further hearing on the question of costs. Such an order does not preclude a party from seeking a special or different costs order (such as an indemnity order, based on an offer of compromise of which the court will not previously be aware): costs orders may be reconsidered on application made before (under UCPR r 36.16(1)) or within 14 days after (under r 36.16(3A)) the order is entered, and reconsideration may be appropriate if the order was made without the parties having had a proper opportunity to make relevant submissions before the order was made: Harris v Schembri (unrep, 7/11/95, NSWSC). A costs order may also be varied in an appropriate case under the “slip rule”, on application under r 36.17: Roads and Traffic Authority v Palmer (No 2)  NSWCA 140 at . However, where there is room for argument about the costs order, or a party seeks an opportunity to be heard, it is prudent expressly to reserve liberty to apply, within a specified time, to set aside or vary the costs order.
If the proper costs order is not prima facie apparent, or apportionment may be appropriate, or if the parties have foreshadowed that they wish to be heard on the question of costs, then after giving judgment in the proceedings it will be appropriate to proceed to hear, then or at a later time, submissions on the question of costs. Trial judges should not defer hearing or determining costs applications merely because an appeal is contemplated or pending. Where there is a dispute as to the appropriate costs order, the judge should rule on the issue, including any application for indemnity costs, and it should not be deferred pending the outcome of a foreshadowed appeal: Dunstan v Rickwood (No 2)  NSWCA 266 at . Stays of costs assessments may be ordered if there is doubt as to whether costs, if paid, could be repaid if the appeal is successful and there are reasonably arguable grounds of appeal: Salfinger v Niugini Mining (Australia) Pty Ltd (No 4)  FCA 1594 at .
Where the question of costs is not addressed and determined, the court is not functus officio in respect of costs, and an order for costs can be made after judgment: NSW Ministerial Insurance Corporation v Edkins (1998) 45 NSWLR 8. Costs orders against non-parties may also be made after the entry of judgment between the parties: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (No 1) (1993) 45 FCR 224; Akedian Co Ltd v Royal Insurance Australia Ltd  1 VR 80 at 98; Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2)  UKPC 39;  1 NZLR 145;  4 All ER 195 (PC).
The typical orders in a straightforward case are, (where the plaintiff succeeds) that the defendant pay the plaintiff’s costs; or (where the defendant succeeds) that the plaintiff pay the defendant’s costs (or that there be judgment for the defendant, with costs; or that the proceedings be dismissed, with costs): see Precedent 8.1 and 8.2 at [8-0200]. For orders where there are multiple defendants, see [8-0080] and Precedents 8.3, 8.4 and 8.5 at [8-0200].
It is implicit in an order that Party B pay Party A’s costs that the quantum, unless agreed, be determined by assessment, and quite unnecessary to specify that that the costs be “as agreed or assessed”. But because, absent agreement, the costs must be quantified by a costs assessor, it is important that the costs the subject of the order, whether interlocutory or final, be described in clear and certain terms, in order to ensure that the parties and the costs assessor can easily ascertain the precise scope of the costs to be paid: Hogan, In the Marriage of (1986) 10 Fam LR 681 at 686.
Cost of the proceedings
Unless a special order is made, the costs of any application or other step in proceedings form part of the general costs in the proceedings. A general costs order thus includes any reserved costs, and any in respect of which no previous order has been made, except where the court has specifically made “no order as to costs” UCPR r 42.7, and see Dal Pont at [6.21]–[6.27]. A general costs order does not disturb or include previous special costs orders, and if it is intended to vary a previous interlocutory costs orders, that must be expressly stated.
A general costs order for the “costs of the proceedings” includes the costs of a court-ordered mediation under CPA s 28: see NSW Civil Procedure Handbook at [r Pt42.290].
[8-0150] Interlocutory costs orders
The court has power under CPA s 98(3) to make orders for costs at any stage of proceedings. Costs issues arise not only at the final hearing, but also in connection with interlocutory applications, such as applications for interlocutory injunctions, determination of preliminary questions, and applications for discovery. An interlocutory costs order may be reconsidered at any later stage of the proceedings. If an interlocutory costs order is not made, the costs of the relevant application fall to be dealt with as part of the general costs in the proceedings.
Particular interlocutory costs orders
Common interlocutory costs orders include:
That party X pay party Y’s costs of the motion
This order may be appropriate where party Y is substantially successful on the interlocutory application, and is considered to be entitled to costs of the application regardless of the ultimate outcome of the proceedings. It is more often appropriate where a defendant succeeds on the motion, as such a motion will have occasioned additional costs even if the plaintiff ultimately succeeds in the proceedings, whereas a plaintiff who succeeds on an interlocutory application will not necessarily be entitled to its costs if the proceedings ultimately fail in their entirety. “Costs of the motion” include all the costs of and incidental to the particular interlocutory application before the court, including costs “reasonably connected” with the application, such as preparation and taking out the relevant orders: Re Hudson; Ex parte Citicorp Australia Ltd (1986) 11 FCR 141 at 144; Dal Pont at [1.23], and are not confined to “costs of the day” (which catch only the costs associated with the appearance on the day in question).
That party X pay party Y’s costs thrown away by the [amendment/adjournment]
This formula catches the costs which have been incurred and are wasted by reason of an adjournment or amendment, typically where the same or similar work (such as drafting a responsive pleading, or preparing for argument) may have to be undertaken a second time.
That costs of the motion be costs in the proceedings
This order has the effect that the costs of the motion will be treated as costs of the substantive proceedings generally, and will form part of the costs dealt with by the general costs order: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorp (No 2)  NSWCA 142 at . This is the default position if no special costs order is made (see “No costs order”, below), and for that reason is strictly unnecessary, but is nonetheless commonly made for clarity and certainty. It may be appropriate where the motion does not give rise to an “event” distinct from the proceedings as a whole, or was necessarily or reasonably brought or opposed to prepare the substantive proceedings for hearing, or where the true merits of the application may not be apparent unless seen in the context of the final result: Fiduciary Ltd v Morningstar Research Pty Ltd  NSWSC 664.
That costs of the motion be the [plaintiff’s/defendant’s] costs in the proceedings
This order means that if the party in whose favour it is made ultimately obtains a general order for costs in the substantive proceedings, then that order includes the costs of the motion; but if the other party obtains a general costs order, then neither party receives the costs of the motion. It is appropriate where the successful party on the motion should have the costs of the motion only if it also succeeds on the substantive proceedings. An order that costs of the motion be the plaintiff’s costs in the proceedings is the usual order in the Equity Division of the Supreme Court where a plaintiff succeeds on a contested application for an interlocutory injunction: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorp (No 2) at –.
That costs of the motion be reserved to the trial judge
This order means that the costs of the motion may be determined separately by the trial judge upon completion of the proceedings, and if not so separately determined will be costs in the proceedings. It is generally undesirable that questions of costs be left to a judicial officer who has not heard and determined the application to which those costs relate. However, where the hearing is imminent, or the issue is related to trial issues, the making of the costs order may be left to the trial judge, especially if it will be the same judge.
No costs order, and “no order as to costs”
Where no specific order is made in respect of costs of interlocutory proceedings, the costs become costs in the proceedings and are caught by any general costs order ultimately made in the proceedings. A general order in respect of costs of the proceedings catches not only the costs of the final hearing, but all interlocutory proceedings except insofar as there is an order to the contrary: UCPR r 42.7; Dal Pont at [1.19]. The absence of any specific costs order is to be distinguished from the court specifically making “no order as to costs”, which amounts to the expression of a contrary intent and means that no party is to receive costs of the motion, regardless of the ultimate outcome, so that each must bear its own costs: Trikas v Rheem (Australia) Pty Ltd  NSWR 645 at 646. Such costs “lie where they fall”: Wentworth v Wentworth  NSWSC 638.
Time for assessment and payment of interlocutory costs orders
Unless the court otherwise orders (for example, by specifying “such costs to be payable forthwith”), the costs of an interlocutory application are not payable until the end of the proceedings: UCPR r 42.7(2). One reason for this is to reduce the likelihood of multiple costs assessments in respect of the one proceeding, though the rule does not preclude assessment (as distinct from enforcement) in the interim: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) at , observing that the rule does not prevent the parties from taking “steps to quantify any such order, but that is a different matter to the question of enforceability”: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at ; Eastmark Holdings Pty Ltd v Kabraji (No 2)  NSWSC 1255 at ; cf Zisti v Bartter Enterprises Pty Ltd  NSWCA 146 at ; Sturesteps v Khoury  NSWSC 1041 at ; Mundi v Hesse  NSWSC 1548 at –.
The court may “otherwise order” that an interlocutory costs order be payable forthwith: Solarus Products v Vero Insurance (No 4)  NSWSC 1012; Fiduciary Ltd v Morningstar Research Pty Ltd  NSWSC 664 at –; Australian Securities and Investments Commission v Rich  NSWSC 297. The discretion may be exercised at any time prior to the conclusion of the proceedings: Showtime Touring Group Pty Ltd v Mosley Touring Inc  NSWCA 53 at .
The discretion to order the immediate payment of interlocutory costs is wide; “[i]n the end, the demands of justice are the only determinant”: Fiduciary Ltd v Morningstar Research Pty Ltd at ; Gattelleri v Meagher  NSWSC 1279 at ; Plaza West Pty Ltd v Simon’s Holdings (NSW) Pty Ltd (No 2)  NSWSC 556 at ; Pavlovic v Universal Music Australia Pty Ltd (No 2)  NSWCA 31. The practice that interlocutory costs orders were payable only upon completion of the proceedings is a relic of times when personal injury litigation formed the overwhelming business of the courts, and is more commonly departed from in commercial litigation. Because an order that costs be paid forthwith is an exception, it will only be made in a case that is out of the ordinary, as such an order “has the capacity to stultify proceedings particularly brought by persons with limited resources, and also has the risk of operating unfairly where, over the course of the proceedings, there may be orders which are made that one or other party should pay the costs of the other from time to time”: In the matter of Elsmore Resources Ltd  NSWSC 1390 at ; Hargood v OHTL Public Co Ltd (No 2)  NSWSC 511 at . The court must consider whether the costs in question should be paid prior to the conclusion of the litigation, or whether one occasion of enforcement of costs orders at the end of a case, with costs orders going different ways being set off, is preferable: Richards v Kadian (No 2)  NSWCA 373 at .
The discretion to “otherwise order” that interlocutory costs be payable forthwith has been exercised in a variety of circumstances, including:
Where the decision relates to the determination of a discrete or self-contained question: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 at –; Richards v Kadian  NSWCA 373 at –. Examples include an unsuccessful application for summary judgment: Perpetual Trustee Co v McAndrew  NSWSC 790; an application for discovery, or a Mareva order: McNamara Business and Property Law v Kasermidis (No 3)  SASC 262; an unsuccessful application to administer interrogatories: Megna v Marshall  NSWSC 1326 at ; an application for contempt: Ark Hire Pty Ltd v Barwick Event Hire Pty Ltd  NSWSC 488 at –; a security for costs application: Young v Cooke (No 2)  NSWSC 1787; and a successful application to restrain solicitors acting for the opponent: Chinese Australian Services Society Co-Operative Ltd v Sham-Ho  NSWSC 241. Where non-parties have appeared in relation to challenges to subpoenas, the court may make orders for costs which are assessable forthwith. However, steps reasonably taken in the management of the proceedings towards a hearing, such as a directions hearing, should be treated as costs in the proceedings generally: Metlife Insurance Ltd v Visy Board Pty Ltd (Costs)  NSWSC 111 at –.
Where the costs are significant and there is likely to be a delay in the conclusion of the proceedings: Fiduciary Ltd v Morningstar Research Pty Ltd at –; particularly if the receiving party is impecunious and the application diverted funds from the substantive cause: Reserve Rifle Club Inc v NSW Rifle Assn Inc  NSWSC 351; Hardaker v Mana Island Resort (Fiji) Ltd (No 2)  NSWSC 1100 at –. This may be the case where liability has been separately determined (under UCPR r 28.2): Herbert v Tamworth City Council (No 4) (2004) 60 NSWLR 476 at  (costs of hearing on liability payable forthwith where liability established but assessment of damages could be delayed for a decade).
Where the costs were incurred by unreasonable or unnecessary conduct: Fiduciary Ltd v Morningstar Research Pty Ltd at – (costs abnormally increased by service of very voluminous material at the last moment, the vast bulk of which was not referred to on the application); Vitoros v Raindera Pty Limited  NSWSC 99 at  (multiple appearances necessitated by plaintiff's repeated defaults); Seven Network Ltd v News Ltd  FCA 1630 at  (wrongful suppression of material documents unnecessarily incurring costs in defending a claim for legal professional privilege); Stokes v McCourt  NSWSC 1014 at – (delays in conduct of the principal proceedings suggested that defendant was conducting a “war of attrition” through interlocutory disputes). The court will take into account the extent to which the parties have failed to facilitate the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings as required by CPA s 56, must take into account the matters set out in ss 56 and 57, and may have regard to the checklist in s 58(2)(b): Bevillesta Pty Ltd v D Tannous 2 Pty Ltd  NSWCA 277 at –; Australian Securities and Investments Commission v Rich  NSWSC 297 at ; Seven Network Ltd v News Ltd  FCA 1630 at .
Where the costs order involves third parties, such as legal practitioners: See Bagley v Pinebelt Pty Ltd  NSWSC 830 at  (wrongful lodgement of caveat by barrister); North South Construction Services Pty Ltd v Construction Pacific Management Pty Ltd  NSWSC 286 at – (abuse of process by non-party).
Considerations that may tend against an “otherwise order” for costs to be payable forthwith include that the party is legally aided: Richards v Kadian (No 2) at , or that the final outcome is sufficiently uncertain that it is preferable to defer the question of costs to the trial judge, or to make costs of the interlocutory application costs in the cause: Megna v Marshall at ; Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1. Cases in which the court has declined to make a “forthwith” order include Cameron v Ofria  NSWCA 37 at  (successful application to strike out cross claim, characterised as ordinary interlocutory application in the general course of proceedings); Hargood v OHTL Public Co Ltd (No 2)  NSWSC 511 (failed application for stay and likely two years before conclusion of proceedings insufficient to depart from usual rule); Hall v Swan  NSWSC 1758 at – (delay in service of expert reports); Eastmark Holdings Pty Ltd v Kabraji (No 2)  NSWSC 1255 at – (several motions heard together, discretionary factors tending in both directions).
Failure to pay interlocutory costs orders
Where a party fails to pay a series of interlocutory costs orders that are payable forthwith, orders for a stay of proceedings under CPA s 67, security for costs and/or dismissal in the event of non-compliance with such orders may be made, but generally only in a special case, such as where the costs are substantial, or the failure to pay is unreasonable, or the party is acting vexatiously: Morton v Palmer (1882) 9 QBD 89; Re Wickham (1887) 35 Ch D 272; Graham v Sutton, Carden & Co  2 Ch 367; Trkulja v Dobrijevic (No 2)  VSC 596 (13 costs orders totalling over $150,000); Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd  NSWDC 7 (Court of Appeal order for gross sum costs order of $15,000).
[8-0160] Quantification of costs
Where an order is made that party A pay party B’s costs, the quantum of party A’s liability is usually ultimately resolved by assessment, failing agreement. Costs as between party and party (now called “ordered costs”: see LPULAA, s 74) are for the most part not regulated, and are assessed on the ordinary basis or the indemnity basis (as to which, see [8-0130]. For circumstances in which costs are regulated, see [8-0170].
Capping of costs
CPA s 98(1)(b), and UCPR r 42.4(1), provides that the court may “cap” costs, and this may be on the application of a party or of its own motion, and prospectively or retrospectively: Dal Pont 7.42–7.47; Nudd v Mannix  NSWCA 327; Nicholls v Michael Wilson Partners Ltd (No 2)  NSWCA 141. However, it is preferable that any such order be made prospectively and not retrospectively: Re Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268 at –, ; Dal Pont, 7.42–7.49; JP Hamilton, “Containment of costs: litigation and arbitration” (presentation, 1 June 2007); Practice Note SC Eq 7. This power has most often been exercised in proceedings where the parties are effectively litigating from the same purse, such as family provision or de facto property litigation.
Gross sum costs orders
Although the quantification of a costs order is usually left to the process of assessment, CPA 98(4)(c) provides that at any time before costs are referred for assessment the court may make an order for a specified gross sum, instead of assessed costs.
The guiding principle as to the making of a lump sum costs order was outlined in Harrison v Schipp (2002) 54 NSWLR 738 at , namely, that the power “should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”. Further principles were elaborated in Hamod v State of NSW  NSWCA 375 at –. Together, these decisions are frequently cited as the leading statements of principle: see, eg, Colquhoun v District Court of NSW (No 2)  NSWCA 54 at – (a decision of particular relevance in circumstances where there is inadequate evidence as to the appropriate sum to be ordered); South Western Sydney Local Health District v Gould (No 2)  NSWCA 160 at ; Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4)  NSWCA 327 at .
Although courts were initially reluctant to make such orders, they have become increasingly common: Poulos v Eberstaller (No 2)  NSWSC 235; Chaina v Presbyterian Church (NSW) Property Trust (No 26)  NSWSC 1009 at –. At first they were utilised in “megalitigation” cases, where the assessment of costs would likely be protracted and expensive: Idoport Pty Ltd v NAB Ltd  NSWSC 1273; see also Hancock v Rinehart (Lump sum costs)  NSWSC 1640, but they are now made in a wide variety of circumstances, including where there has been contumelious conduct by a party (Zepinic v Chateau Constructions (Aust) Pty Ltd (No 2)  NSWCA 227; Zepinic v Chateau Constructions (Aust) Ltd (No 2)  NSWCA 99), or where the financial circumstances of the party ordered to pay costs are poor: Hamod v State of NSW at –. Such orders are now increasingly made where the subject matter of the litigation is a modest sum in comparison to the costs involved, or to avoid “satellite litigation” about costs: O’Rourke v P & B Corporation Pty Ltd  WASC 36 at ; Lambert v Jackson  FamCA 275 at  (lump sum costs orders made on an indemnity basis by reason of conduct of the litigation); Vumbaca v Sultana (No 2)  NSWDC 195 at ; Colquhoun v District Court of NSW  NSWCA 460 at  (appeal from Children’s Court, in which unsuccessful party had contested every point, and the costs order to which the other parties were entitled should not be rendered nugatory by the prospect of disproportionate disputation by him); or even in litigation with no special features: Poulos v Eberstaller (No 2).
When making a gross sum order, the court must determine a reasonable amount. The assessment of any lump sum to be awarded must represent a review of the successful party’s costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing, but the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Hamod v State of NSW at , citing Smoothpool v Pickering  SASC 131; Harrison v Schipp (2002) 54 NSWLR 738 at 743; Hadid v Lenfest Communications Inc  FCA 628 at ; Auspine Ltd v Australian Newsprint Mills Ltd  FCA 673; see also Zepinic v Chateau Constructions (Aust) Ltd (No 2)  NSWCA 99 at , . This typically involves an assessment of the different components of the costs, including the rates and hours billed per lawyer, in the context of the litigation as a whole. An example of this can be seen in Zepinic v Chateau Constructions (Aust) Ltd (No 2), where junior counsel’s fees were deemed reasonable because the rates were not excessive, it was appropriate for counsel to be briefed to appear, and it was sensible and efficient for counsel to draft and settle written submissions; however, another lawyer’s fees were deemed to be disproportionately high, because the matter was neither large nor complex and it could and should have been resolved promptly by summary dismissal.
A discount (typically in the order of 10–20% in the case of an indemnity order, and 30–35% in the case of a party/party order) is usually applied when calculating a gross sum costs order, for two main reasons: first, because on assessment, even on the indemnity basis, a successful party invariably recovers something less than its actual costs, typically 15% where the assessment is on an indemnity basis; and secondly, the necessarily broad-brush approach of the court to assessment on a lump sum basis — involving some risk that the sum includes costs that would not be recovered on assessment — coupled with the savings to the costs creditor in time and costs through avoiding a detailed assessment, and the loss to the costs debtor of the opportunity to scrutinise and object to a detailed bill, has resulted in a practice of applying a discount on lump sum assessments: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Idoport Pty Ltd v NAB, Idoport Pty Ltd v Donald Robert Argus  NSWSC 23 at ; Zepinic v Chateau Constructions (Aust) Ltd (No 2) at ; In the matter of Aquaqueen International Pty Ltd  NSWSC 500 at ; Hancock v Rinehart (lump sum costs) at –.
However, that does not mean that the court must apply a percentage discount to the sum sought by the successful party, and the court “must be astute not to cause an injustice to the successful party” by applying “an arbitrary ‘fail safe’ discount on the costs estimate submitted to the court”. If the court can be confident that there is little risk that the sum includes costs that might be disallowed on assessment, the case for a discount is seriously undermined, and where a gross sum is assessed on an indemnity basis, and there is no evidence of unreasonableness, it may be inappropriate to apply any discount, although one may nevertheless be appropriate if there is evidence that the successful party errs on the side of excessive use of legal services: Beach Petroleum at 164–165; Norfeld v Jones (No 2)  NSWSC 199 at –; Harvey v Barton (No 4)  NSWSC 809 at  ; Hancock v Rinehart (Lump sum costs) at –; In the matter of Beverage Freight Services Pty Ltd  NSWSC 797 at , .
The Costs Assessors Review Committee (CARC) has published a “Guideline for Costs Payable” between parties under court orders (whether “ordered costs” under the new legislation or “party/party costs” under the repealed legislation). This Guideline, which is available on the Supreme Court website, is intended to provide guidance for assessors as to what might reasonably be allowed in respect of certain types of work and hourly rates, but does not have the effect of a mandatory scale. By analogy it may assist courts in quantifying costs.
[8-0170] Regulated costs
In some situations, costs are fixed, limited or regulated by or under statutory provisions, including Legal Profession Uniform Law Application Act 2014, ss 59 and 61, Workplace Injury Management and Workers Compensation Act 1998, and Motor Accidents Compensation Act 1999.
Costs on default judgment and the enforcement of judgments
The costs recoverable for the undefended recovery of a liquidated debt, and for the enforcement of a judgment by a judgment creditor, are fixed under s 59(1)(d) and (e) of LPULAA and Pt 5, reg 24 of the Legal Profession Uniform Law Application Regulation 2015. The scales as to the costs recoverable in such matters are set out in Sch 1 for each court.
Claims for personal injury damages
LPULAA Sch 1 limits the recoverable costs for legal services in respect of certain claims for personal injury damages where the damages recovered do not exceed $100,000: LPULAA Sch 1, cl 2. These provisions do not preclude the awarding of costs on an indemnity basis if a reasonable offer of compromise is not accepted: Sch 1, cl 5. Applications may be made to the court under CPA s 98, UCPR rr 42.15 and 42.20 by a plaintiff for costs outside the cap: Hurcum v Domino’s Pizza (No 2) (2007) 4 DCLR 194 (failed allegation of fraud which complicated and delayed personal injury proceedings). The costs cap applies to a defendant, including one who brings a cross-claim, but not to a cross-defendant in proceedings for contribution: Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd (2006) 65 NSWLR 717 at , .
The cap applies if the amount recovered on a claim for personal injury damages does not exceed $100,000, whether the claim is in negligence or for an intentional tort such as assault, but does not include claims for false imprisonment, which is not a “personal injury”: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; NSW v Williamson (2012) 248 CLR 417 at , ; .
Claims for work injury damages
The Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”), s 346, applies to costs (including disbursements) payable by a party in or in relation to a claim for work injury damages, including court proceedings for work injury damages, and authorises regulations making provision for or with respect to the awarding of costs to which it applies. The regulations may provide for the awarding of costs on a party/party basis, on a practitioner and client basis, or on any other basis. A party is not entitled to an award of costs to which the section applies, and a court may not award such costs, except as prescribed by the regulations or by the rules of the court concerned. In the event of any inconsistency between the provisions of the regulations under this section and rules of court, the provisions of the regulations prevail to the extent of the inconsistency. For the purpose of s 346, the relevant regulation is Workers Compensation Regulation 2016 (“the Regulation”), Pt 17. “Work injury damages” are defined in s 250 as damages recoverable from a worker’s employer in respect of:
an injury to the worker caused by the negligence or other tort of the employer, or
the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,
whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
In such claims, the WIM Act and the Regulation govern the costs to be awarded, to the exclusion of the discretion conferred by CPA s 98. Thus, a court can only award costs as prescribed by the Regulation or by the UCPR, but in the event of any inconsistency, the Regulation prevails. The scheme of the Regulation allows no scope for an award of indemnity costs: Chubs Constructions Pty Ltd v Chamma  NSWCA 98 at –. This is to be distinguished from proceedings for workers’ compensation, as s 112 of the WIM Act allows the Personal Injury Commission to make orders on an indemnity basis.
Similarly, the UCPR rules relating to offers of compromise do not operate once a Certificate of Mediation Outcome has been issued under WIM Act, s 318B. So far as costs in court proceedings are concerned, the parties are “fossilised” in their respective positions at the conclusion of the mediation. The same position applies throughout the court proceedings, including any appeal: Smith v Sydney West Area Health Service (No 2)  NSWCA 62 at –; Pacific Steel Constructions Pty Ltd v Barahona (No 2)  NSWCA 9 at –; see also Chubs Constructions Pty Ltd v Sam Chamma (No 2) (2010) 78 NSWLR 679 at –; Sneddon v The Speaker of the Legislative Assembly  NSWSC 842 at –.
Claims under the Motor Accidents Compensation Act 1999
Costs in respect of claims covered by the Motor Accidents Compensation Act 1999, for accidents that occur after 5 October 1999, are regulated by Ch 6 (ss 148–153) of that Act: Najjarine v Hakanson  NSWCA 187. Section 152(2) provides that the rules of court relating to offers of compromise apply to any such offer made in those proceedings. This extends to Calderbank offers: Arnott v Choy (No 2)  NSWCA 336 at –. Otherwise, subject to the rules of court, the costs of such proceedings are to follow the event and are payable on a party/party basis: s 152(3). However, the provisions of Ch 6 regulate costs in court claims brought under the MAC Act in a way that does not otherwise permit for the operation of the rules of court: San v Rumble (No 2)  NSWCA 259 at .
[8-0180] Interest on costs
For actions commenced before 24 November 2015, an application can be made under CPA s 101(4) for interest on costs: Zepinic v Chateau Constructions (Aust) Pty Ltd (No 2)  NSWCA 227; Zepinic v Chateau Constructions (Aust) Ltd (No 2)  NSWCA 99 at –; see also Short v Crawley (No 45)  NSWSC 1541; Alawadi v Widad Kamel Farhan trading as The Australian Arabic Panorama Newspaper (No 3)  NSWDC 204. Although it has been said that some positive basis for the application should be established (Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436 at ; McKeith v Royal Bank of Scotland Group Plc; Royal Bank of Scotland Group Plc v James (No 2)  NSWCA 260 at ), and interest on costs has been refused where it was not sought at trial and there has been delay (T&T Investments Australia Pty Ltd v CGU Insurance Ltd (No 2)  NSWCA 372) or for insufficiency of evidence (Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) at –), it is not necessary to demonstrate circumstances out of the ordinary to warrant such an order: Drummond and Rosen Pty Ltd v Easey (No 2)  NSWCA 331 at . The better view is that interest on costs should now be seen, like interest on a judgment, as no more than appropriate compensation for the time value of money, for the period while a party is out of pocket: Drummond and Rosen Pty Ltd v Easey (No 2) at ; Grace v Grace (No 9)  NSWSC 1239 at –; Richtoll Pty Ltd v WW Lawyers (in Liq) Pty Ltd (No 3)  NSWSC 1010 at –. Such orders, which have become increasingly commonplace, have often adopted the complex formula set out in Lahoud v Lahoud  NSWSC 126 which required the attribution of payments between the client and the solicitor to particular parts of the party/party costs.
An interest order under CPA s 101(4) can be made after the costs order has been made, at least so long as it is made before there is a judgment for costs effected by registration of the certificate of assessment: Timms v Commonwealth Bank of Australia (No 3)  NSWCA 25 at  (Beazley JA, observing, in respect of the former Supreme Court Act 1970, s 95(4), that a claim for interest under the section is “part of the claim that a party has in relation to costs”, and not a separate and independent course of action, and that if no application for interest were made and determined before entry of judgment for costs, the claim merged with the judgment, as had occurred in that case when final judgment for costs was obtained upon filing the costs certificate); Seiwa Australia Pty Ltd v Seeto Financial Circumstances Pty Ltd (No 2)  NSWSC 118; Simmons v Colly Cotton Marketing Pty Ltd  NSWSC 1092; Lucantonio v Kleinert (Costs)  NSWSC 1642 at –.
For actions commenced on or after 24 November 2015, CPA s 101 now provides that interest runs on a costs order at the prescribed rate from the date of the order (unless stated otherwise in the court order): s 101(4) and (5). This means that, for actions commenced on or after 24 November 2015, interest on costs from the date of the order is the default position, but the court retains a discretion to otherwise order — including to order that interest run from an earlier date. If the court does so (which may well be appropriate if the party entitled has been paying its lawyers throughout), then rather than invoking the complex Lahoud formula, although it is in principle impeccable, it is preferable to adopt an approach analogous to that used for interest on damages and select an approximate mid-point from which interest will run.
Leave to appeal is required for appeals to the Court of Appeal on a question of costs alone: Supreme Court Act 1970, s 101(2)(c). For leave to be granted something more than arguable error is necessary; there must be “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”: Mohareb v Saratoga Marine Pty Ltd  NSWCA 235 at ; see, eg, Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das  NSWCA 164 at –; The Age Company Ltd v Liu (2013) 82 NSWLR 268 at ; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at .
If a trial judge’s exercise of discretion in relation to costs miscarries, the costs order may be set aside and the Court of Appeal may then exercise the discretion afresh: McCusker v Rutter  NSWCA 318; State of NSW v Quirk  NSWCA 216 at – (factors justifying appellate intervention), or remit the matter to the trial judge for redetermination.
As to costs on appeal generally, see Dal Pont, Ch 20.
Applications for payment from the Suitors’ Fund Act 1951
The Suitors’ Fund Act makes provision for payments to relieve litigants of the burden of costs arising out of erroneous decisions of lower courts. The legislation generally applies in the context of appeals, which include proceedings for judicial review: Ex Parte Parsons; Re Suitors’ Fund Act (1952) 69 WN (NSW) 380; Lou v IAG Limited t/as NRMA Insurance  NSWCA 319, from a decision of a court or tribunal, which includes a claims assessor under the Motor Accidents Compensation Act: Australia Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 513–4; Lou v IAG Limited t/as NRMA Insurance. Certificates have been granted in the District Court in the course of judgments handed down after hearing appeals from tribunals: Perla v Danieli  NSWDC 31; Patel v Malaysian Airlines Australia Ltd (No 2)  NSWDC 4, and a Local Court appeal: Jolly v Houston (2009) 10 DCLR (NSW) 110. See Dal Pont, Ch 21.
[8-0200] Precedent costs orders
The following are recommended forms to be adopted in making costs orders:
Precedent 8.1 — Final costs order (where the plaintiff succeeds): that the defendant pay the plaintiff’s costs.
Precedent 8.2 — Final costs order (where the defendant succeeds): that the plaintiff pay the defendant’s costs OR that there be judgment for the defendant, with costs OR that the proceedings be dismissed, with costs.
Precedent 8.3 — Bullock order (where the plaintiff succeeds against the first defendant but fails against the second defendant): (1) that the plaintiff pay the second defendant’s costs; (2) that the first defendant pay the plaintiff’s costs, including any costs which the plaintiff is liable to pay the second defendant under the preceding order.
Precedent 8.4 — Sanderson order (where plaintiff succeeds against first defendant but fails against second defendant): (1) that the first defendant pay the plaintiff’s costs; (2) that the first defendant pay the second defendant’s costs.
Precedent 8.5 — Ordinary order where plaintiff succeeds against single or multiple defendants: that the defendant(s) pay the plaintiff’s costs.
Precedent 8.6 — Apportionment: that the defendant pay 80% of the plaintiff’s costs.
Precedent 8.7 — Indemnity costs from date of offer of compromise: that the defendant pay the plaintiff’s costs, on the ordinary basis until <date> and thereafter on the indemnity basis.
Precedent 8.8 — Family Provision (where the plaintiff succeeds): (1) that the defendant pay the plaintiff’s costs; (2) that the defendant be entitled to be indemnified out of the estate in respect of the defendant’s costs, including the costs payable to the plaintiff under the preceding order.
Precedent 8.9 — Forthwith: “… such costs to be payable forthwith”.
Precedent 8.10 — no order as to costs: It is inappropriate to make an order that a party pay its own costs: Liverpool City Council v Estephan  NSWCA 161 at . However, parties often desire some express provision to make clear that there is no associated costs liability; this may be addressed by a notation: “It is noted that there is no order as to costs, to the intent that each party bear its own costs”.
CPA, ss 3, 5(1), 56–60, 98, 99, 101
Children and Young Persons (Care and Protection) Act 1998, s 88
Civil Liability Act 2002, s 35A
Defamation Act 2005 (NSW) s 40
Family Law Act 1975 (Cth) s 117(2)
Legal Profession Act 2004 (rep)
Legal Profession Uniform General Rules 2015
Legal Profession Uniform Law Application Act 2014 Sch 2, ss 59, 61
Legal Profession Uniform Law Application Regulation 2015
Motor Accidents Compensation Act 1999, Ch 6
Property (Relationships) Act 1984
Succession Act 2006, s 99
Suitors Fund Act 1951
Workers Compensation Regulation 2016, Pt 17
Workplace Injury Management and Workers Compensation Act 1998, ss 112, 250, 318B, 346
UCPR rr 16.9, 36.10, 42.2, (former) 42.3, 42.4, 42.5, 42.7, 42.14, 42.15, 42.24, 42.25, 42.27, 42.34 and 42.35
G Dal Pont, Law of Costs, 4th ed, LexisNexis Butterworths, 2018
Ritchie’s Uniform Civil Procedure NSW (LexisNexis Butterworths)
The Hon John P Hamilton QC, The Hon Justice Geoff Lindsay, Michael Morahan OAM and Carol Webster SC, General Editors, NSW Civil Procedure Handbook 2014 (Lawbook Co, 2014; commentary on Pt 42 – Costs prepared by Peter Johnstone, President of the Children’s Court of New South Wales)
MJ Beazley, “Calderbank offers 2”, paper delivered at the “‘Without Prejudice’ Offers and Offers of Compromise” NSW Young Lawyers Civil Litigation Committee Seminar, 26 September 2012, at <www.supremecourt.justice.nsw.gov.au/Documents/beazley260912.pdf>
MJ Beazley, “Calderbank offers”, paper delivered at the Australian Lawyers Alliance Hunter Valley Conference, 14–15 March 2008 at <www.supremecourt.justice.nsw.gov.au/Documents/beazley140308.pdf>
Justice Hamilton, “Containment of Costs: Litigation and Arbitration” (1 June 2007)
Costs Assessors Review Committee, “Guideline for Costs Payable”, Supreme Court of New South Wales website