The Court quantified costs orders on a gross sum basis under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), applying a broad-brush approach with discounts consistent with established authority. The Court rejected MWP's argument that a gross sum costs order should be nil because a litigation funding deed would require the recipient to return the funds, holding that the potential operation of such a deed is irrelevant to the making of a costs order, just as a party's indigence or insolvency is irrelevant. The Court accepted that briefing counsel familiar with complex, lengthy proceedings for directions hearings before a Registrar was not unreasonable and may represent a false economy to avoid.
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