A legally represented party seeking indemnity costs against an unrepresented litigant whose case is misconceived should first clearly and squarely advise the litigant why the case is doomed to fail; failure to do so weighs against indemnity costs. Costs incurred in opposing a misconceived motion may be substantially discounted in a gross sum costs order where the costs are disproportionate to the complexity of the issues and the successful party failed to seek prompt summary dismissal. There is an unresolved conflict in NSWCA authority on whether evidence of actual payment is required for interest on costs under s 101(4) of the Civil Procedure Act 2005 (NSW).
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