Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 3) [2024] NSWCA 297 Hearing dates: On the papers Date of orders: 12 December 2024 Decision date: 12 December 2024 Before: Kirk JA, Stern JA, Basten AJA Decision: The Court orders, by consent: (1) Bank Guarantees numbered G689051 and G758647 addressed to the Supreme Court of New South Wales in proceedings numbered 2020/00128125 and in favour of the appellant (second defendant in those proceedings) be released and payable to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers. (2) The $40,000 paid into the Supreme Court of New South Wales in proceedings numbered 2020/00128125 on behalf of the appellant (second defendant in those proceedings) be paid to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers to the following solicitor's trust account: Account Name: Sparke Helmore Law Practice Trust Account NSW Bank: St George Bank Limited Branch: Level 9, 65 Berry Street North Sydney NSW 2060 BSB: 332-082 Account Number: 552854936 Ref: LAW009-00245 (3) The appellant's notice of motion filed on 14 October 2024 otherwise be dismissed with no orders as to costs. Catchwords: COSTS – application for gross sum costs order – where gross sum already agreed between the parties – application refused Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232 Category: Costs Parties: Gerrard Toltz Pty Ltd (Appellant) City Garden Australia Pty Ltd (in liq) as trustee for Ming Tian City Garden Unit Trust (Respondent) Representation: Counsel: M Hall (Appellant) M Castle (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Swaab Attorneys (Respondent) File Number(s): 2023/00461689 Publication restriction: Nil. Decision under appeal Court or tribunal: Supreme Court New South Wales Jurisdiction: Equity Citation: [2023] NSWSC 1498 Date of Decision: 5 December 2023 Before: Rees J File Number(s): 2020/00128125 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: This Court handed down judgment and made orders in this appeal on 30 September 2024: Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232. As to costs, order 4 of the Court's orders provided that the respondent is to pay the appellant's costs of the appeal and of the proceedings at first instance. Stern JA noted, at [184], that neither party made submissions on appeal that costs should not follow the usual rule, nor as to what orders should be made as to the costs of the proceedings at first instance. 2. By motion filed on 14 October 2024, the appellant, Gerrard Toltz Pty Ltd (Toltz), sought the following orders: 1. Under section 98(4)(c) of the Civil Procedure Act 2005 (NSW), and/or under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), the costs payable under order 4 made by this Court in these proceedings, be payable in a specified sum instead of assessed costs. 2. The respondent to pay the costs of this motion to be included in the specified sum under order 1. 3. Any further order this Honourable Court deems appropriate. 1. Affidavits of John Anthony Coorey, the solicitor for Toltz in the proceedings, sworn 14 October 2024 and 23 October 2024 were filed in support of the motion, together with Exhibit JC-1. On 24 October 2024, Dino Liistro, one of Mr Coorey's partners, filed an affidavit seeking to amend the notice of motion to seek, under proposed order 1, an order that the costs payable under order 4 of this Court's orders be payable in the specified sum of $700,000 instead of assessed costs. He also sought two further orders, seeking the release of bank guarantees in favour of Toltz and that $40,000 paid into court on behalf of Toltz to be released. 2. Written submissions were filed by Toltz on 25 October 2024 in support of the motion, and by the respondent, City Garden Australia Pty Ltd (in liq) (City Garden) on 14 November 2024, objecting to the quantum of costs that Toltz was contending should be ordered by way of specified sum, but otherwise not opposing the orders sought by Toltz. 3. By email to the Court on 25 November 2024, copied to City Garden's solicitors, Toltz's solicitors notified the Court that Toltz and City Garden had "reached an agreement about the costs as between them" and proposed that orders be made in accordance with attached short minutes of order signed on behalf of both parties (but not expressed to be orders made by consent). The orders proposed were: "The Court orders and directs as follows: 1 Under section [98](4)(c) of the Civil Procedure Act 2005 (NSW), and/or under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), the costs payable under order 4 made by this Court in these proceedings on 30 September 2024, be payable in the sum of $655,000, broken down as follows: a. $375,000 in relation to the primary proceedings; and b. $280,000 in relation to these proceedings. 2 Bank Guarantees numbered G689051 and G758647 addressed to the Supreme Court of New South Wales in proceedings numbered 2020/00128125 and in favour of the appellant (second defendant in those proceedings) be released and payable to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers. 3 The $40,000 paid into the Supreme Court of New South Wales in proceedings numbered 2020/00128125 on behalf of the appellant (second defendant in those proceedings) be paid to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers to the following solicitor's trust account: Account Name: Sparke Helmore Law Practice Trust Account NSW Bank: St George Bank Limited Branch: Level 9, 65 Berry Street North Sydney NSW 2060 BSB: 332-082 Account Number: 552854936 Ref: LAW009-00245 4 The [appellant's] notice of motion filed on 14 October 2024 be dismissed with no orders as to costs. 5 The balance of the amounts of costs owing in Order 1 to be paid out of the liquidation of City Garden Australia Pty Ltd (In Liquidation)." 1. By email of 26 November 2024, the Court notified the solicitors for both Toltz and City Garden that the Court was willing to make orders 2, 3 and 4 of the proposed orders set out above, and that if the parties wished to put on submissions against that course, or in support of orders 1 and 5 of the proposed orders, they should do so by 2 December 2024. The solicitors for Toltz made short submissions in support of proposed order 1 by email of 28 November 2024. Those submissions addressed why the Court would be justified in making a lump sum costs order and the quantum of costs that should be ordered but did not address why there was any need for the Court to make an order in circumstances in which the parties had reached agreement as to costs. Toltz's solicitors made no submissions in support of proposed order 5, and City Garden did not make any submissions in response to the email of 26 November 2024. 2. All of the evidence and submissions set out above have been considered by the Court. 3. None of the affidavits or submissions filed go to the question of why there is any utility, still less need, for the Court to make an order that costs be paid in a specified sum in circumstances where Toltz and City Garden have reached an agreement as to the amount of costs that City Garden should pay to Toltz. Rather they address the utility of an order being made that obviates the need for an assessment of costs, and to support the quantum of costs that the parties now agree should be paid by City Garden to Toltz. Order 4 of this Court's orders on 30 September 2024 leaves it open to the parties to reach agreement as to the amount of costs to be paid and thereby to obviate the need for an assessment of costs. In circumstances where such agreement has been reached, there is no reason for this Court to make any further order. We thus decline to make order 1 as sought in the draft short minutes of order agreed between the parties (and set out at [5] above). We would add that we would not in any event have been willing to make orders that costs be paid in the sums specified in those orders as regards the appeal proceedings. 4. We also see no utility in the Court making order 5 as sought in the draft short minutes of order agreed between the parties. 5. We are content to make the orders as set out in orders 2, 3 and 4 as sought in the draft short minutes of order agreed between the parties to facilitate the release of bank guarantees and the payment of money out of court. 6. In the circumstances, the Court makes the following orders, by consent (with the erroneous description of the notice of motion filed on 14 October 2024 as being "the respondent's" in the draft short minutes of order corrected): 1. Bank Guarantees numbered G689051 and G758647 addressed to the Supreme Court of New South Wales in proceedings numbered 2020/00128125 and in favour of the appellant (second defendant in those proceedings) be released and payable to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers. 2. The $40,000 paid into the Supreme Court of New South Wales in proceedings numbered 2020/00128125 on behalf of the appellant (second defendant in those proceedings) be paid to the solicitor for the appellant being John Anthony Coorey at Sparke Helmore Lawyers to the following solicitor's trust account: Account Name: Sparke Helmore Law Practice Trust Account NSW Bank: St George Bank Limited Branch: Level 9, 65 Berry Street North Sydney NSW 2060 BSB: 332-082 Account Number: 552854936 Ref: LAW009-00245 1. The appellant's notice of motion filed on 14 October 2024 otherwise be dismissed with no orders as to costs. ********** 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: 12 December 2024