COSTS — payment out of security for costs — whether entitlement to security established — whether special costs order should be made — gross sum costs order — proportionality of costs
Quick Take
1An undertaking to the court to pay costs secured by money paid into court is not subject to equitable or statutory set-off; the efficacy of such security requires that it be unqualified by any set-off the payer may claim against the payee.
2When making a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the court should assess what costs should reasonably have been incurred rather than mechanically applying a percentage discount to costs actually billed, and must ensure costs are proportionate to the importance and complexity of the subject matter (s 60).
3Where a successful applicant's own deficiencies in evidence preparation — such as overstatement, errors, and the need for supplementary material that should have been in chief — inflate costs, the court may exclude those wasted costs from any costs order in the applicant's favour.
