Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3) [2024] NSWSC 1646

Supreme Court New South Wales

Medium Neutral Citation: Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 3) [2024] NSWSC 1646 Hearing dates: On the papers Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Gross sum costs order made Catchwords: COSTS – gross sum costs order – court's discretion as to quantum of gross sum costs order Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 2) [2024] NSWSC 1131 Category: Costs Parties: Lake Macquarie City Council (Plaintiff) Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (Defendant) Representation: Counsel: L Shipway / F Anwar (Plaintiff) D A Lloyd SC / M F Newton / J Adamopoulos (Defendant)

Solicitors: Moray & Agnew (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2018/77899

JUDGMENT 1. The background to this matter is set out in my judgment of 11 December 2024. [1] I shall use the same abbreviations here. 2. On 25 October 2024, I ordered that the Council pay Newcastle's costs thrown away by reason of the vacation of the 25 November 2024 hearing. 3. On 28 November 2024, I ordered that those costs be payable on the making of the gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW). 4. I have now received detailed and careful submissions as to that question from both parties. 5. Newcastle contends that the relevant amount is $141,264.38 being, it contends, a reasonable estimate of its costs thrown away discounted by 20%. 6. I have received from the Council a detailed and careful analysis of Newcastle's claim. 7. As the Council points out, a significant portion of the costs claimed by Newcastle as being thrown away relate to an "evidence review" and "general matter preparation". 8. I think the Council is correct to submit that not all of those costs can truly be said to be thrown away. 9. The Council argues for a discount of 30%, rather than 20%, and submits that the appropriate figure that should be ordered as costs thrown away is $87,000. 10. A necessarily broad brush approach must be taken to this question. The parties may be assured that I have given careful consideration to their detailed submissions. My conclusion is that the appropriate figure to fix as costs thrown away is $100,000. 11. My intention was that that figure be paid forthwith upon determination. 12. I order that Lake Macquarie City Council pay the costs thrown away by Newcastle Resources Pty Ltd by reason of the vacation of the hearing date. 13. I fix those costs pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) at $100,000. 14. I order that the Council pay those costs by 5pm on 31 January 2025.