Where a plaintiff's case fails comprehensively on all essential elements and the matters underpinning the failure were peculiarly within the plaintiff's own knowledge, the court may find that the proceedings were commenced in wilful disregard of known facts warranting indemnity costs. A defendant's failure to warn the plaintiff that its case is hopeless is not a significant factor against indemnity costs where the critical matters were peculiarly within the plaintiff's knowledge. Gross sum costs orders are appropriate where they would achieve significant savings and give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic).
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