Chamberlain v Kiloren Pty Ltd (Costs of Motion)

[2026] NSWSC 643

Supreme Court of NSW

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Interrogate

Catchwords

1. COSTS — interlocutory application — motion for gross sum costs order dismissed — whether costs should be costs in the cause — whether dismissal or motion constituted “event” for costs purposes — application of rr 42.1 and 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) — no basis for costs in the cause

Quick Take

The Court held that where an interlocutory motion for a gross sum costs order is dismissed, that dismissal constitutes an 'event' for the purposes of UCPR r 42.1, and the unsuccessful moving party should pay the successful party's costs on the ordinary basis. Pike J endorsed the view expressed by Brereton J in Arada (No 2) that UCPR r 42.7 does not create a default position that interlocutory costs are 'costs in the cause'; rather, the general rule in r 42.1 that costs follow the event applies equally to interlocutory applications. The circumstances surrounding the original costs orders (including prior defaults by the opposing party) and the fact that the motion was not frivolous did not justify departing from costs following the event, nor did they support indemnity costs.