Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593

Supreme Court New South Wales

Medium Neutral Citation: Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593 Hearing dates: On the papers, submissions dated 27 September 2024, 4 and 11 October 2024 Date of orders: 11 December 2024 Decision date: 11 December 2024 Jurisdiction: Equity - Commercial List Before: McGrath J (in chambers) Decision: 1. The second defendant is to pay the costs of the plaintiffs of the notice of motion filed 10 May 2024 (including the application for costs) on an indemnity basis. 2. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiffs are entitled to a specific gross sum in respect of the Plaintiffs' Costs of the proceedings in the total amount of $134,607.95 plus GST. 3. The Plaintiffs' Costs are payable forthwith by the second defendant such that they are payable within 14 days of today. 4. The second defendant is to pay the costs of the first defendant of the notice of motion filed 10 May 2024. Catchwords: COSTS — party/party — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — indemnity costs application by representative plaintiffs in class action as successful party on motion— where plaintiffs submit interlocutory application brought in a representative capacity in fulfilment of duties to group members analogous to fiduciary duties and to progress the main proceedings — where plaintiffs submit second defendant's conduct necessitated the application — whether conduct of second defendant was unreasonable — HELD — plaintiffs should not be left out of pocket for making an application protective of the interests of group members — costs ordered on indemnity basis COSTS — application for gross sum costs — no evidence of second defendant's ability to meet adverse costs order — where costs assessment likely to involve further expense, delay and aggravation — broad brush approach based on informed assessment of actual costs incurred by plaintiffs — no discount necessary where accurate and reliable costs evidence provided — HELD — costs awarded as gross sum COSTS — timing — costs payable forthwith — application of Morningstar factors — HELD — costs payable forthwith Legislation Cited: Civil Procedure Act 2005 (NSW) ss 60, 98, 183 Legal Profession Uniform Law 2014 (NSW) ss 138, 172 Legal Profession Uniform Law Application Act 2014 (NSW) s 76 Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2, 42.4, 42.5, 42.7, 42.25 Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Baychek v Baychek [2010] NSWSC 987 Bowman v Datalec Services Pty Ltd & Ichor Constructions Pty Ltd [2021] NSWSC 1360 Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 Latham v Hubbard; Estate of Ross [2014] NSWSC 805 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 2) [2024] NSWSC 1165 Mitchell v Transport for NSW [2022] NSWCA 141 NIAA Corporation Ltd (in liq), Miller v Hindmarsh, Supreme Court of New South Wales, 3 September 1993, unreported, BC9303640 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121 Texts Cited: Dal Pont, G E, Law of Costs (5th ed, 2021, LexisNexis Butterworths) Category: Costs Parties: Darren Mitchell and Rosaline Mitchell (Plaintiffs/ Applicants) Roads and Maritime Services (now known as Transport for NSW) (First Defendant/First Respondent) Litigation Fund WCX Pty Ltd (Second Defendant/ Second Respondent) Representation: Counsel: J Redwood SC and H Cooper (Plaintiffs/Applicants) G Sirtes SC and L Johnston (First Defendant/First Respondent) R Coshott – Director (Second Defendant/Second Respondent)