District Court New South Wales Medium Neutral Citation: Kishore v Transit Systems West Pty Ltd (No 2) [2022] NSWDC 119 Hearing dates: On the papers (Submissions closed 20 April 2022) Date of orders: 21 April 2022 Decision date: 21 April 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [9] Catchwords: COSTS – determination of basis for costs order concerning dismissal of summons Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005, r 42.5 Cases Cited: Harrison v Schipp (2002) 54 NSWLR 612 Kishore v Transit Systems West Pty Ltd [2022] NSWDC 93 Category: Costs Parties: Chandra Kishore (Plaintiff) Transit Systems West Pty Ltd (Defendant) Representation: Counsel: Ms J Kishore, solicitor (Plaintiff) Mr C Micali (Defendant) Solicitors: A&J Montgomery Legal (Plaintiff) Kemp & Co Lawyers (Defendant) File Number(s): 2022/38072 Publication restriction: None Judgment 1. These reasons concern the costs consequences of a dismissed summons by by which the plaintiff sought to appeal a decision of the Small Claims Division of the Local Court. The summons was filed by the plaintiff on 9 February 2022. It was dismissed on 31 March 2022: Kishore v Transit Systems West Pty Ltd [2022] NSWDC 93. 2. Consequent upon that disposition, subject to what follows, the ordinary costs consequence should follow, namely, the plaintiff should bear the defendant's costs of the dismissed summons: Uniform Civil Procedure Rules 2005, r 42.5. 3. The Court's costs jurisdiction confers a wide discretion for determining costs disputes: s 98 of the Civil Procedure Act 2005 (NSW). 4. At the time the plaintiff's summons was dismissed he was not in a position to fully respond to the defendant's claim for costs. It was therefore agreed that the parties would forward written submissions on costs by 7 April 2022. At the request of the plaintiff that date was later extended to 19 April 2022. It was also agreed that the costs issue should be decided on the papers with the outcome published on Caselaw to avoid the parties incurring further expense in a relatively small claim. 5. The defendant's costs submissions were supported by an affidavit from Ms Maria Peronace, solicitor, affirmed on 30 March 2022. The defendant sought an order that the plaintiff pay the defendant's costs on an indemnity basis from 8 March 2022, at which time the defendant had notified the plaintiff that indemnity costs would be sought as the defendant considered the appeal was without merit. The defendant also submitted that its costs should be paid by the plaintiff pursuant to a claim for a lump sum costs order in the indemnity amount of $17,323.75, which included counsels' fees in the amount of $7873.25. 6. The plaintiff's submissions were dated 19 April 2022 and were in the form of his affidavit sworn on 18 April 2022. Contrary to the defendant's submissions, the plaintiff seeks an order that the defendant's costs should be assessed for fairness and reasonableness by a Costs Assessor in the event those costs remain the subject of dispute as to quantum. 7. The defendant's costs were incurred within a relatively short time frame between 8 February and 31 March 2022. It is difficult for the Court to evaluate the reasonableness of the aggregated items comprising the defendant's draft bill of costs comprising Annexure "H" to the affidavit of Ms Peronace. In my view, although inconvenient to the parties, in fairness to the parties, those costs should be more reliably assessed by a Costs Assessor because in this case, a broad-brush discounted assessment of lump sum costs has the real potential to operate unfairly to both parties: Harrison v Schipp (2002) 54 NSWLR 612 at [22]. Accordingly, I decline to assess the defendant's costs on a discounted gross or lump sum basis. 8. The plaintiff's affidavit revealed a state of confusion on his part as to whether the appeal was to proceed. This was because of other litigation involving the underlying events which led to the plaintiff's appeal. Shortly stated, on 23 March 2022, a week before the hearing of the appeal, the plaintiff thought his interests would be represented by an insurer, Allianz. That belief proved to be incorrect. The short time frame which then followed involved a state of confusion on the plaintiff's part and in that context, he tried to reach a negotiated resolution. Those attempts were unsuccessful. Be that as it may, in the circumstances, and having regard to the outcome, as the successful party in the appeal, the defendant is entitled to have its costs paid. 9. The plaintiff is ordered to pay the defendant's costs of the dismissed summons on the ordinary basis as agreed or assessed. I decline to order that the defendant's costs be assessed on an indemnity basis as such an order would be oppressive in the circumstances. ********** Amendments 22 April 2022 - Coversheet, Cases cited: removal of second "NSWLR". Paragraph [7]: removal of second "NSWLR". 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: 22 April 2022