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Category: Costs

Parties: Vashti Elizabeth Conway (plaintiff)
Leeroy Property Investments Pty Ltd (first defendant)
Tweed Shire Council (second defendant)

Representation: Counsel:
M Seymour SC / L Nurpuri (first defendant)
Solicitors:
Yates Beaggi Lawyers (plaintiff)
Attwood Marshall Lawyers (first defendant)
Hall and Willcox (second defendant)

File Number(s): 2023/00277334

Publication restriction: Nil

JUDGMENT

1. I delivered my primary judgment in these proceedings on 6 June 2025: see Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580 (PJ or Primary Judgment). These reasons assume familiarity with, and maintain the same abbreviations and definitions as in the PJ.

2. In the PJ, I made the following orders:

(1) The further amended statement of claim be dismissed.

(2) The plaintiff pay the first defendant’s costs of the proceedings.

(3) If either party contends for a different costs order they should notify my Associate within 14 days whereupon I will vacate order 2 above and set a timetable for the question of costs to be determined on the papers.

3. By email dated 18 June 2025, the solicitors for the first defendant (Leeroy) notified my Associate of the costs orders sought by Conway which were different to order 2 made on 6 June 2025. In response, I directed the parties to seek to agree a timetable to determine the varied costs orders sought by Leeroy.

4. The parties were thereafter unable to agree on a timetable. Leeroy proposed a timetable. There was no response from Ms Conway. I subsequently set a timetable. This included an extended period of eight weeks from receipt of Leeroy’s material for Ms Conway to respond.

5. Leeroy filed its material as directed on 15 August 2025. Two days prior to the eight week deadline for Ms Conway to provide her responsive material, Ms Conway sought a further two weeks until 24 October 2025 for her responsive material. The reason stated by Ms Conway’s solicitor (being her husband Mr Amirbeaggi) for the extension was his other court commitments. Over the objection of Leeroy, I permitted the further two weeks sought. Ms Conway ultimately served her material on 28 October 2025. Leeroy’s responsive material was received by me on 14 November 2025.

6. These reasons determine the costs order to be made in lieu of that made on 6 June 2025.

The competing positions

7. The costs orders ultimately propounded by Leeroy were:

(1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the Plaintiff pays the First Defendant’s costs:

a. in the gross sum of $285,232.35 for the substantive proceedings; and;

b. in the gross sum of $TBC for the costs application.

(2) Order pursuant to s 101(4) and (5) of the Civil Procedure Act 2005 (NSW) that the Plaintiff is to pay interest on the costs payable to the First Defendant calculated from the date of these orders at the prescribed rate.

8. The “TBC” in order (1)(b) was quantified at $53,603.62 in an affidavit by Leeroy’s solicitor made 15 August 2025. This was revised down to $49,140.17 in a subsequent affidavit, with Leeroy ultimately submitting it would accept $40,000 in this regard. The total gross sum sought is thus $325,232.35.

9. Ms Conway advanced a series of alternative costs orders. Her primary case was that order 2 should be vacated and it be ordered that no order as to costs be made, such that each party bears its costs of the proceedings. Alternatively, it was contended that the costs order made in order 2 on 6 June 2025 be referred to costs assessment. In the further alternative, it was contended that if the Court was minded to make a gross sum costs order, an appropriate gross sum would be between $140,000 and $150,000 and $8,000 and $10,000 for the costs application.

10. For the reasons set out below, I have determined that a gross sum costs order should be made in the sum of $295,000. Interest is to run on the costs order.

Evidence relied upon

11. In chief, Leeroy relied upon:

(a) an affidavit of Jade Carlson (Leeroy’s solicitor) (Ms Carlson) dated 11 August 2025 [74 paragraphs] together with Exhibit JLC-1 of 493 pages – in support of the gross sum; (b) an affidavit of Ms Carlson dated 15 August 2025 [13 paragraphs] in support of the costs of the costs application; (c) an affidavit of Roslyn Eleanor Walker [director of Costacomp Pty Ltd] (Ms Walker) dated 11 August 2025 [10 paragraphs] attaching her report of 58 paragraphs.

12. Ms Conway relied on an affidavit of her solicitor, Mr Amirbeaggi, made 27 October 2025 [62 paragraphs]. Mr Amirbeaggi is, as stated above, Ms Conway’s husband.

13. In reply, Leeroy relied on a further affidavit of Ms Carlson made 14 November 2025 [34 paragraphs] and exhibit JLC-3 of 177 pages.

14. Mr Amirbeaggi’s affidavit appeared to contain an objection to the Court receiving Ms Walker’s report, although no such objection is contained within Ms Conway’s submissions. In turn, Leeroy’s reply submissions raised a number of objections to parts of Mr Amirbeaggi’s affidavit.

15. Neither party sought an oral hearing on either the admissibility of the parts objected to or the costs application more generally.

16. I do not regard any of the points raised by either party by way of objection as rendering any of the material relied on as being inadmissible. There is no basis in my view for the Court not to receive Ms Walker’s material. The points raised by Leeroy in relation to Mr Amirbeaggi’s affidavit, seem to me to go to the weight that I would attach to the contention made and this is how I have approached the objected to evidence below.

17. In considering the opinions expressed by Mr Amirbeaggi in his affidavit I am conscious of the fact that although he is a solicitor of some 20 plus years standing, he is Ms Conway’s husband and thus could not be said to be independent. Unlike Leeroy, who relied on an independent report from Ms Walker, Ms Conway did not seek to rely on any independent report from a costs assessor in response.

Should order 2 stand?

18. It is convenient to deal first with Ms Conway’s contention that order 2 made on 6 June 2025 – to the effect that she pay Leeroy’s costs of the proceedings – be vacated and in lieu thereof it be ordered that there be no order as to costs to the intent that each party bear its own costs of the proceedings.

19. Ms Conway’s submissions to this effect were based on the contention that the proceedings concerned issues that were or could be characterised as being of public interest such that rule 4.2 of the Land and Environment Court Rules 2007 (NSW) is engaged. The relevant matters were said to be:

(a) the issues concerned the processes of a local government authority/statutory body, which are of public interest; (b) the issues concerned matters of environmental law, which are of public interest; (c) the Court was required to consider whether the grant of easements were in the public interest; (d) whether the Land and Environment Court of New South Wales has jurisdiction to grant an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW); and (e) the inter-relationship between, and application of, a Court ordered easement against provisions of clause 1.9A of the standard Local Environmental Plan.

20. It was further contended that the claims made by Ms Conway were established, arguable, and involved novel legal issues which contributed to the proper understanding of the law. Ms Conway conducted the litigation reasonably and with propriety: see Millers Point Fund Inc v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 (Millers Point).

21. Leeroy opposed the vacation of order 2 on a number of grounds:

(a) rule 4.2(i) only applies, by force of rule 4.1 to “proceedings in Class 4 of the Court’s jurisdiction” and only part of the proceedings met that description – the challenge to the validity of the development consent; (b) even in respect of the Class 4 proceedings, rule 4.2(2) has no application when, as here, an unsuccessful applicant has a personal or pecuniary interest in the subject matter of the litigation; (c) most of the factors identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 at [61] (Caroona Coal) are made out, such that the proceedings do not have any public interest character.

22. I reject Ms Conway’s contentions, essentially for the reasons advanced by Leeroy.

23. Rule 4.2(2) can only apply to part of the proceedings – being the challenge to the validity of the development consent. Pritchard J effectively determined as much when her Honour transferred the matter to the Supreme Court: see Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86 at [27], [76(2)]. The equitable claims advanced and those under the Conveyancing Act are outside rule 4.2.

24. The proceedings insofar as they challenged the validity of the development consent were pursued in Ms Conway’s private interest as the adjoining landowner seeking to pressure her existing amenity: see, for example, May v Northern Beaches Council (No 3) [2023] NSWLEC 72 at [35] per Robson J.

25. The present case is quite different to the decision of Robson J in Millers Point relied on by Ms Conway. The applicant in Millers Point was a community association formed for the purpose, inter alia, of supporting public open spaces.

26. The application thus fails at the first stage identified by Preston CJ of LEC in Caroona Coal at [13]-[19] and [38].

27. I do not propose to vacate order 2 made on 6 June 2025.

Should a gross sum costs order be made?

28. The relevant principles that I should apply were not in dispute. In Ahern v Aon Risk Services Australia (No 2) [2022] NSWCA 39 at [14]-[18] the Court (Meagher, White and Brereton JJA) stated:

[14] The principles relevant to the Court’s exercise of discretion under s 98 were set out in Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA) (Hamod). Her Honour noted at [813]:

[813] The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

“The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.”

[15] The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Hamod at [816]-[817]. As Basten JA noted in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]:

The power to make such an order is governed by the obligation of the court to give effect to the overriding purpose of the Act, as identified in Pt 6 of the Civil Procedure Act. The court is to ensure that the issues between the parties are resolved “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute” (Civil Procedure Act, s 60); that obligation extends to the disposal of disputes as to costs. Although questions of costs undoubtedly play an important practical role in commercial litigation, disputes as to quantification are ancillary to the primary issues in dispute and consequential upon the resolution of the primary issues. Costs provide an opportunity for ongoing litigation about “non-essential issues” which should be resolved with as little technicality and expense as reasonably practicable. [footnotes omitted]

[16] Primary considerations relevant to the exercise of the s 98(4)(c) discretion include “the relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability”: Hamod at [816]; see also Kostov v Zhang (No 2) [2016] NSWCA 279 at [22]; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [30].

[17] The power to award a gross sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [22]. The power may be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod at [818].

[18] If it considers it appropriate to make the order, the Court may adopt a “broad brush” approach to quantification, as to require the Court to undertake a detailed examination of the kind carried out in a formal costs assessment would defeat the purpose of the order: Harrison v Schipp at 743; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The costs ordered should be “based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills)”: Hamod at [820]. Courts have typically applied a discount when assessing costs on a gross sum basis, though the aptness of a discount primarily depends on the accuracy and reliability of the costs evidence available to the Court: Hamod at [814].

Overview of the evidence adduced by Leeroy

29. The primary lay evidence relied on by Leeroy on the gross sum application was from Ms Carlson, the solicitor with the day to day conduct of the matter and who has acted for Leeroy since about October 2022, shortly after Leeroy was served with the summons in the LEC proceedings. Ms Carlson’s evidence may relevantly be summarised as follows:

(a) Attwood Marshall entered into a Disclosure and Costs Agreement with Leeroy on 1 October 2022; (b) revised costs disclosures have regularly been given by Attwood Marshalll to Leeroy; (c) the total costs incurred by Leeroy between 19 September 2022 and 6 June 2025 totalled $390,806.42, broken down as follows:

(i) professional costs of $229,618.95; (ii) counsel’s fees of $127,110.50; (iii) expert’s fees of $25,131.21; (iv) disbursements of $8,945.76.

(d) Ms Carlson provides a breakdown by period – LEC fees, Supreme Court up to trial, trial and post trial; (e) Ms Carlson then deals with what occurred when the proceedings were in the LEC, expressing the view that had Ms Conway commenced proceedings in the Supreme Court, the costs incurred by Leeroy in the LEC would have been avoided or substantially avoided; (f) Leeroy incurred costs in responding to matters not ultimately pressed at the hearing by Ms Conway; (g) Ms Carlson identifies the retaining of Ms Walker as a costs expert and the documents provided to Ms Walker; (h) in Ms Carlson’s opinion, Leeroy was put to unreasonable and unnecessary expense of preparing, printing and delivering the Court Book by reason of the conduct of Ms Conway’s legal representatives.

30. In a separate affidavit made 15 August 2025, Ms Carlson deposed to the costs incurred by Leeroy in relation to this costs application, and expressed the view that a sum of $53,603.62 would be fair and reasonable based on Ms Walker’s report. This was subsequently revised down to $49,140.17 in a later affidavit from Ms Carlson.

31. Ms Walker’s evidence may relevantly be summarised as follows:

(a) she has been engaged as a costs consultant since 2002 and has extensive experience in costs in New South Wales including the preparation of applications for assessment of costs. She is currently the chair of the Costs Committee of the Law Society of New South Wales; (b) the material provided to her was comprehensive, including the invoices issued by Leeroy’s solicitor to Leeroy. She has reviewed all of the material provided to her; (c) a costs assessor must determine what is fair and reasonable amount of costs for the work concerned, having regard to the relevant legislative provisions which she identifies including s 172 of the Legal Profession Uniform Law (NSW) (LPUL); (d) a costs assessor is likely to find that the rates of charge for Ms Carlson – who carried out 87% of the work on the matter – were fair and reasonable, as are the rates charged by the other solicitors involved in the matter, and the rates charged by counsel. This is notwithstanding that some of the rates are outside the CARC Guidelines; (e) having reviewed the detailed spreadsheet of work performed, costs of $26,286.70 should be deducted as relating to work in respect of which separate costs order have been made; (f) to determine the likely outcome of a costs assessment, a percentage reduction approach should be adopted. A number of factors would be borne in mind by a costs assessor – which are listed by Ms Walker. A reduction in the range of 20-35% is not unusual, and although the higher percentage may occur, it is more likely than not that a reduction of 25% would be applied to professional costs in this matter. Given the uncertainty involved, a further reduction of 5% should be applied, i.e. a 30% reduction to professional costs; (g) having reviewed counsel’s fees, $11,880 should be deducted as out of scope, leaving $115,230.50 to which a percentage reduction should be applied. A reduction of 0 to 10% is the usual range. A mid-point of 5% is adopted in relation to junior counsel (Ms Nurpuri) and no reduction for other junior counsel briefed for specific tasks; (h) in relation to expert fees, a 5% reduction has been applied to the fees of Northpoint Advisory on the basis that this expert contributed to the outcome of the proceeding. No reduction has been applied to the fees of the expert valuer called at the hearing; (i) disbursements of $8,945.76 have been reduced to $8,440.24 for the reasons explained by Ms Walker; (j) the sum of $285,232.35 is more likely than not to be the amount which a costs assessor will determine as fair and reasonable for costs to be paid on the ordinary basis; (k) costs of $39,500 would be incurred by Leeroy in the assessment process. Those costs would be recoverable on an assessment; (l) the total time for a costs assessment would likely be eight months, assuming no application for review or appeal.

32. Ms Carlson made a further affidavit in response to aspects of Mr Amirbeaggi’s evidence.

Ms Conway’s evidence

33. Ms Conway’s evidence in opposition to the Court making a gross sum costs order was contained in an affidavit made by her solicitor, Mr Amirbeaggi. That evidence may be summarised as follows:

(a) he has over 24 years of post-qualification experience and has considerable experience in relation to costs assessment; (b) it is not clear to Mr Amirbeaggi what costs were incurred by Leeroy to address the claims not pursued by Ms Conway; (c) Mr Amirbeaggi estimates the costs of the costs assessment will be $8,000 to $10,0000 and not $39,000 as opined by Ms Walker; (d) in his experience, Ms Walker would not be able to consider or provide an opinion as to the s 172 of the LPUL factors without having viewed the evidence of the work. A respondent to an application for costs, as the Court, would be in the same position; (e) Leeroy seeks costs for a Senior Associate and Solicitors/Associates charged at rates which are more than 30% over the mean/average CARC rate for that field/practitioner. The mean/average rates are more likely to be the outcome in a costs assessment; (f) Mr Amirbeaggi has experienced assessments where the reduction ranged between 30% to 50%; (g) it is not clear how the costs for Northpoint Advisory are claimable given it was not an expert in the case; (h) in his experience, a costs assessment takes three to four months; (i) a costs assessor has a broad discretion as to who pays the costs of the assessment process; (j) there is insufficient record before the Court to satisfy the Court as to the fair and reasonable costs, or against which to determine an appropriate gross sum order; (k) if the Court is minded to make a gross sum costs order it should be between $148,000 and $150,000, together with $8,000 to $10,000 for making the gross sum application.

Determination

34. Detailed written submissions were provided by both parties, including detailed submissions in reply. I do not propose to summarise those submissions but rather deal with the substantive matters below.

35. The first contention raised by Ms Conway is that there is no evidence of the work before the Court and Ms Walker expressed her views without viewing the evidence of the work. It is not entirely clear to me what “evidence of the work” is being referred to. A considerable body of material has been provided to the Court, including, most recently, the invoices issued by Leeroy’s solicitors to Leeroy. I have reviewed all of that material.

36. Not all of the material briefed to Ms Walker has been provided to the Court. This is for reasons of costs efficiency. Of more importance is the comprehensive body of material provided to Ms Walker which included the invoices, the material tendered in both the Land and Environment Court and before me and an excel spreadsheet containing billable and non-billable professional costs items dated 19 September 2022 to 8 July 2025 from invoices of Attwood Marshall. Ms Walker, an experienced costs consultant, was of the opinion that the material provided to her, which she reviewed, enabled her to express a view as to the costs likely to be allowed on an assessment.

37. Ms Walker was also aware of the material she did not have - referred to as the Additional Material in her report. She expresses the view that review of this material was not necessary or required but is otherwise mindful of this element of uncertainty in applying the discount to professional costs.

38. It is not correct to assert that Ms Walker did not review evidence of the work. She did. A considerable body of the material provided to Ms Walker has been provided to the Court, which I have reviewed. This includes the invoices for the work.

39. I reject the contention that the Court does not have sufficient material before it to make a gross sum costs order.

40. Ms Conway cites as evidence of her concern as to the costs estimate a contention that Ms Walker opined that only $25,802.70 was incurred in a period where Leeroy’s costs were $76,628.11, and to be an unexplained discrepancy requiring assessment. I accept Leeroy’s contention that this is a misreading of Ms Walker’s report. Ms Walker in fact deducted an amount of $25,802.70 from the amounts put to her on the basis that she estimated that these costs were covered by Pritchard J’s order in relation to the transfer application. There is no unexplained discrepancy.

41. It is then contended that although Ms Walker identifies the requirements of s 172 of the LPUL, Ms Walker “provides no support for each of the factors identified”. I do not agree. The report examines the relevant factors in detail.

42. Ms Conway’s contentions in relation to the CARC Guidelines being exceeded do not warrant the outcome that the costs should be assessed. Ms Walker’s report carefully considers why it is appropriate to allow the rates charged, although in some respects they exceed the CARC Guidelines.

43. Further, the contention that the discount applied on an assessment could be greater than the range stated by Ms Walker goes nowhere. Ms Walker acknowledged the uncertainty in relation to this aspect and added 5% to her original estimate of a 25% reduction. Ms Walker’s considered opinion is that a 30% reduction is appropriate.

44. Two particular items identified by Ms Conway are Northpoint Advisory’s fees and travel costs. Their quantum is not overly significant. Each was separately identified by Ms Walker. The evidence of Ms Carlson demonstrates, in my view, that Northpoint Advisory’s retention was appropriate. There is also nothing unreasonable in the claimed travel costs. Contrary to Ms Conway’s submission, Ms Walker at [44(f)] of her report expressly says why the travel costs should be allowed.

45. It follows that I reject each of the substantive matters raised by Ms Conway as telling against the making of a gross sum costs order.

46. I am satisfied that there is sufficient material before the Court to enable a gross sum costs order to be made. The material enables me to determine a gross sum fairly between the parties. The material principally consists of a detailed report of an experienced costs consultant who examined a comprehensive body of material. I deal below with what that gross sum should be.

47. I am also satisfied that the circumstances of the present case warrant the exercise of the discretion. The making of the order – in circumstances where I have sufficient confidence in arriving at a figure – will avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process. There seems little doubt that a costs assessment would be heavily contested.

48. I turn now to consider what is the appropriate gross sum. I do so using a broad brush.

49. The comprehensive report of Ms Walker expresses the opinion that costs will be recoverable totalling $285,232.35. There are a number of components which feed into this total. There are uncertainties in relation to all, or almost all, components, including most importantly:

(a) the appropriate hourly rate allowance having regard to the CARC Guidelines; and (b) the appropriate percentage discount to be applied to professional costs and counsel’s fees.

50. The largest component is professional costs and it is to this component that the greatest uncertainties, set out at (a) and (b) above, apply.

51. It is also generally accepted that the Court applies a further discount when determining a gross sum.

52. Having regard to these matters, I propose to order a gross sum of $255,000 which is a deduction of about 10% from Ms Walker’s figure.

53. In relation to the separate costs of the gross sum application, an appropriate figure to order is $40,000. This is a further discount on the figure derived from applying Ms Walker’s discounts to the actual costs incurred – being approximately $49,000.

54. Leeroy also seeks an order that interest be paid on these amounts. Nothing was said by Ms Conway against this. Interest should be awarded.

Orders

55. The orders of the Court are:

56. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff pay the first defendant’s costs in the gross sum of $295,000.

57. Pursuant to s 101(4) and (5) of the Civil Procedure Act 2005 (NSW), the plaintiff pay interest on the costs payable to the first defendant pursuant to order 1 above, calculated from the date of these orders at the prescribed rate.

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