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. ********** Endnote 1. Lake Macquarie City Council v Newcastle Resources Pty Ltd (formerly known as SCE Resources Pty Ltd t/as Steelstone) (No 2) [2024] NSWSC 1131. 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: 19 December 2024