COSTS — whether consent orders constituted an “event” — whether Respondents capitulated — whether the Applicant is a “clear winner” — no reasonable alternative but to commence legal proceedings — Respondents to pay Applicant’s costs as agreed or assessed
Quick Take
1Consent orders that substantially reflect the relief sought in the originating process constitute an 'event' for the purposes of UCPR r 42.1 and may amount to an effective capitulation by the unsuccessful party, distinguishing the case from a true negotiated settlement where no order as to costs would ordinarily be made.
2Where pre-litigation correspondence gives a party a reasonable opportunity to resolve the dispute and that correspondence is effectively ignored, the court may conclude the successful party had no reasonable alternative but to commence litigation, supporting a costs order notwithstanding the absence of a contested hearing on the merits.
3A gross sum costs order under s 98(4) CPA requires sufficient evidentiary confidence in the quantum claimed; tax invoices with generic descriptions of work may be insufficient to support a lump sum award, particularly where the amount appears disproportionate to the complexity of the dispute.
