Supreme Court New South Wales Medium Neutral Citation: De Rucci International Pty Ltd v Zhu and others (Costs) [2021] NSWSC 1119 Hearing dates: On the papers Date of orders: 3 September 2021 Decision date: 03 September 2021 Jurisdiction: Common Law Before: Wilson J Decision: (1) Order 2 of 15 June 2021 is vacated; (2) In lieu, the defendants are to pay the plaintiff a gross sum of $13,000 as costs of the proceedings with respect to the Amended Notice of Motion filed on 26 May 2021. Catchwords: COSTS — application for stay of enforcement order following judgment against defendant – earlier stay application dismissed – fresh application also dismissed – request for a gross sum costs order Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: De Rucci International Pty Ltd v Zhu & Ors [2020] NSWSC 1720 De Rucci International Pty Ltd v Zhu [2020] NSWSC 1927 De Rucci International Pty Ltd v Zhu and others [2021] NSWSC 1108 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Category: Costs Parties: De Rucci International Pty Ltd (Plaintiff) Lucy Xiaoping Zhu (First Defendant) HQ Living Pty Ltd (Second Defendant) Singways (Moore Park) Pty Ltd (Third Defendant) HQ Living (Moore Park) Pty Ltd (Fourth Defendant) HQ Bedding Pty Ltd (Fifth Defendant) Representation: Counsel: G Gee (Plaintiff / Respondent) M Fantin (Defendant / Applicant) Solicitors: Auyeung Hencent & Day Lawyers (Plaintiff/ Respondent) Gary Cassim & Associates (Defendants / Applicants) File Number(s): 2019/00293452 Publication restriction: Nil Judgment 1. HER HONOUR: On 15 June 2021 the Court, sitting in the Duty List, heard the defendants' Amended Notice of Motion filed 26 May 2021 seeking a stay of the enforcement of an earlier judgment of Rothman J of 2 December 2020 in De Rucci International Pty Ltd v Zhu & Ors [2020] NSWSC 1720. A previous motion filed by the defendants on 29 December 2020, also seeking a stay of enforcement of Rothman J's judgment, was dealt with on 30 December 2021 by Cavanagh J and dismissed, with the first defendant required to pay the plaintiff's costs of that motion: De Rucci International Pty Ltd v Zhu [2020] NSWSC 1927. 2. In an ex tempore judgment delivered at the conclusion of the hearing, the Court dismissed the amended stay motion and ordered costs against the defendants / applicants on the usual basis, subject to any application from the plaintiff / respondent for a different order: De Rucci International Pty Ltd v Zhu and others [2021] NSWSC 1108. Pursuant to that order, and in compliance with the timetable then set, the plaintiff / respondent filed an application for a gross sum costs order, in the amount of $13,000. Evidence and submissions were also filed and served. 3. Any response from the defendants / applicants was to be filed and served by 9 July 2021, but nothing has been received by the Court. On 25 August 2021 a Notice of Ceasing to Act for each of the defendants in the proceedings was filed by the solicitors formerly on the record for them. The Application 1. In support of the application the plaintiff / respondent relies upon the affidavit of Vincent Zhiqing Zhu, solicitor for the plaintiff, affirmed on 28 June 2021. 2. Mr Zhu has detailed his client's claim for the costs of defending the amended motion, which total $15,174.50 inclusive of tax. The affidavit also calculates appropriate discounts to the legal fees incurred and sets out applicable disbursements. 3. Mr Zhu is concerned that the defendants will not pay a usual costs order, as they have failed to do so on each occasion on which such an order has been made to date, and the plaintiff / respondent is yet to recover any costs ordered in its favour. 4. Mr Zhu's experience suggests that, were the costs of the Amended Motion to be assessed, the likely quantification of recoverable costs would be in the order of $13,525.60, including tax. The plaintiff seeks an order that the defendants pay to the plaintiff the lesser sum of $13,000.00 as compensation for the costs incurred by the plaintiff in defending the amended stay motion, without need for a costs assessment to take place. 5. Mr Zhu has annexed relevant documentary evidence to his affidavit supporting the amount claimed. 6. In submissions filed in support of the special costs order, the plaintiff / respondent submits that a gross sum order is a simple and effective means of ensuring that its costs are paid, without incurring the additional costs and delay associated with a formal assessment, costs that would be disproportionate to the amount claimed. It is argued that the prospects of recovering the costs of an assessment process are limited, and this too militates in favour of a gross sum order. 7. The plaintiff also points to the nature of the proceedings that the defendants placed before the Court, it being an attempt to re-litigate a matter already determined by the Court in December 2020, where there was no proper basis for reconsideration of the earlier decision. Determination 1. For the reasons identified in submission by counsel for the plaintiff / respondent, I propose to make an order for gross sum costs payable by the defendants to the plaintiff. 2. Section 98 of the Civil Procedure Act 2005 (NSW) provides a broad discretion to the Court to make an order for costs. Section 98(4)(c) provides for a court to make an order for a specified gross sum instead of assessed costs. In Hamod v State of New South Wales and Anor [2011] NSWCA 375 the Court of Appeal (per Beazley JA with whom Giles JA and Whealey JA agreed) considered the circumstances in which it might be appropriate to make such an order, at [813] – [820]: "I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]: "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." See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, " Civil Procedure Act ", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd ; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J. In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable. The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp ); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45]. The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]). 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: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673. The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165 ; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743 . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165." 1. On the evidence, I am satisfied that the prospect of any recovery from the defendants of the costs involved in a formal costs assessment, if required, is limited. It appears that the defendants have not made any payments towards the judgment debt or previous costs orders made by this Court, and there is no reason to conclude that the situation will be different with respect to a usual costs order relevant to this most recent application. The plaintiff would thus be disadvantaged by an order requiring a costs assessment in circumstances where the prospects of recovery against the defendants may be remote. 2. The sum sought is established by appropriate evidence, and it incorporates a modest discount. 3. Significantly, that the plaintiff has incurred these costs at all is wholly attributable to the defendants' conduct of the matter. Simply stated, the Amended Motion argued on 21 June 2021 should not have been brought. It did no more than ask one judge of the Common Law Division to review the decision of another judge of the Common Law Division, where there was no evidence of any material change in circumstances, and where appellate proceedings were already on foot in the Court of Appeal concerning the substantive judgment. The plaintiff / respondent was needlessly put to the costs of defending an action which had no prospects of success. 4. That feature, coupled with those other matters to which I have referred, is determinative of the application in my view. Orders 1. The orders that the Court makes are: 1. Order 2 of 15 June 2021 is vacated; 2. In lieu, the defendants are to pay the plaintiff a gross sum of $13,000 as costs of the proceedings with respect to the Amended Notice of Motion filed on 26 May 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2021