Transport for NSW v Boensch (No 3) [2024] NSWSC 112

Supreme Court New South Wales

Medium Neutral Citation: Transport for NSW v Boensch (No 3) [2024] NSWSC 112 Hearing dates: 29 November 2023, 13 December 2023 Date of orders: 15 February 2024 Decision date: 15 February 2024 Jurisdiction: Equity - Real Property List Before: McGrath J Decision: See [59] Catchwords: COSTS — timing — costs payable forthwith — where the plaintiff relies on Morningstar factors — where the first defendant submits that a costs order at this stage in the proceedings would stultify his defence and cross-claim and function to punish him — HELD — on balance the default position under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 applies COSTS ­— party/party — general rule that costs follow the event — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — where the plaintiff submits that costs should be payable as a gross sum — where a contested assessment of costs would expose the plaintiff to irrecoverable expense, delay and aggravation — HELD — gross sum costs awarded JUDGMENTS AND ORDERS — amending, varying and setting aside — where the cross-claimant submits that the principal judgment failed to account for the filing of a Notice of Intention to Appeal in respect of related proceedings — where no Notice to Appeal has been lodged and the cross-claimant is out of time to do so — HELD — orders varying principal judgment refused Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anchorage Capital Master Offshore Pty Ltd v Sparkes (No 2) [2019] NSWSC 550 Boensch v Bingham [2023] NSWSC 1152 Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82 Bowman v Datalec Services Pty Ltd & Ichor Constructions Pty Ltd [2021] NSWSC 1360 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Hamod v New South Wales [2011] NSWCA 375 In the matter of Elsmore Resources [2014] NSWSC 1390 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Transport for NSW v Boensch (No 2) [2023] NSWSC 1354 Category: Costs Parties: Transport for NSW (ACN 18 804 239 602) (Plaintiff) Franz Boensch (First Defendant) Go Green Systems Pty Ltd (ACN 115 997 192) (Second Defendant) Representation: Counsel: G Keesing (Plaintiff) F Boensch (Self-Represented) (Defendant)