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[2026] NSWCA 158
procedural. The first respondent’s costs were assessed in a gross sum of $73,000, with interest running from 10 August 2026 subject to s 101(3) of the Civil Procedure Act.
The appeal had already been dismissed, with Conway ordered to pay Leeroy's costs. When the parties could not agree on the amount, Leeroy asked the Court to fix costs directly instead of having them formally assessed. Conway accepted $62,000 for the appeal costs but disputed paying the costs of Leeroy's application. The Court ordered her to pay both amounts: $62,000 for the appeal and $11,000 for the application. It relied on costs evidence, the lack of engagement with Leeroy's settlement offer, and the time and expense that a separate assessment could involve. The total was $73,000, with interest from the date of the order subject to the statutory 28-day provision.
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2,071 words · generated 07/10/2026
This is a consequential costs judgment following the dismissal of Vashti Conway's appeal. The underlying appeal concerned judicial review of Tweed Shire Council's decision to grant development consent for a dwelling on land owned by Leeroy Property Investments Pty Ltd. Conway had also sought, in the alternative, an easement over part of Leeroy's land under s 88K of the Conveyancing Act 1919 (NSW). The appeal itself was dismissed on 2 July 2026, and Conway was ordered to pay Leeroy's costs: [1].
4 cited instruments linked from this judgment.
The appeal judgment gave Leeroy leave to apply for a gross sum costs order if the parties could not agree on the amount. On 3 July 2026, Leeroy offered to resolve its entitlement to appeal costs for an all-inclusive $55,000. It received no substantive reply. On 16 July 2026, Leeroy made its gross sum application under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (CPA), supported by a costs consultant's report and an affidavit from its solicitor: [2], [8].
Leeroy sought $73,855.49 in total. That was made up of $62,270.84 for the appeal costs, which the costs consultant considered a costs assessor would likely find fair and reasonable, and $11,584.65 for the costs application itself: [2]. Conway filed no responsive evidence. She did not oppose appeal costs of $62,000, but disputed liability for the costs of the application. In the alternative, she argued those costs were excessive and that a solicitor's affidavit could have supported the application without engaging a costs consultant: [3], [12].
The Court decided the application on the papers. It ordered a combined gross sum of $73,000: $62,000 for the appeal costs and $11,000 for the application costs. Interest was to run from 10 August 2026, subject to CPA s 101(3): [17] and the orders.
The Court first set out the general principles governing gross sum costs orders. It described the power under CPA s 98(4)(c) as discretionary, capable of exercise when circumstances warrant, and dependent on the Court being able to act fairly and having sufficient confidence in the amount on the available evidence. It noted that courts typically apply a discount, but are not required to undertake the detailed examination associated with taxation or formal costs assessment: [4].
For the appeal costs, the decisive matters were the evidentiary basis and the lack of substantive dispute over the amount. The Court said the Walker Report gave it “sufficient confidence” in the proposed figure. Conway did not, in substance, oppose that sum. The Court also considered that a contested assessment might involve significant expense, delay and aggravation, referring to the contested costs assessment in the related Supreme Court proceedings: [5]. It fixed the appeal costs at $62,000 by rounding down the report's $62,270.84 figure as appropriate for a broad-brush assessment: [6].
The Court separately considered whether Conway should pay the costs of the application. It applied the general rule that “costs follow the event” under UCPR r 42.1. Leeroy had succeeded in obtaining the primary order it sought, and the Court identified no special circumstances to depart from the usual rule: [8]. The absence of engagement with the $55,000 offer mattered in context. The Court reasoned that Leeroy had been left either to incur the expense of making the application or to proceed to costs assessment. It did not treat the benefit of a gross sum order as a reason for Leeroy to absorb its application costs: [8]-[9].
The Court also addressed the practical consequences of a formal assessment. It accepted unchallenged evidence that a costs assessor would likely order Conway to pay the greater part of the costs of the assessment. It noted that interest could accrue on Conway's liability during the assessment process under CPA ss 101(4)-(5). The Court considered prompt resolution by gross sum order beneficial to both sides: [9].
For the amount of the application costs, the Court had the solicitor's affidavit and invoices, and Conway had been able to respond: [10]. It found that the professional fees related to preparing instructions and documents for the costs consultant, preparing the affidavit, and communications with the client and solicitors. The fees did not appear unfair or unreasonable on their face: [13]. It rejected the suggestion that using a costs consultant was unnecessary. Such evidence can provide a reliable basis for fixing a sum and reduce the risk of an arbitrary assessment, even where the approach is broad-brush: [14].
The Court considered Leeroy's preparation in light of the adversarial approach to costs in the earlier proceedings and its concern about what might be required to support its application: [15]. Because the claimed costs already included discounts, and those discounts reflected the expert evidence about what might be allowed on assessment, the Court found no basis for an additional discount. It rounded the $11,584.65 claim down to $11,000: [12], [16].
The judgment does not purport to change the law governing gross sum costs orders. It says the governing principles were not in dispute and refers to Ahern v Aon Risk Services Australia (No 2) [2022] NSWCA 39 and Amirbeaggi v EB (No 2) [2023] NSWCA 184 as authorities on those principles: [4]. It then adopts, for the purposes of this application, the summary in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6]. That summary describes the power as discretionary, calls for fairness and sufficient confidence in the amount, and confirms that a court need not conduct a formal assessment.
The judgment's contribution in this matter is therefore an application of existing principles to a particular procedural setting: an application for gross sum costs after an unsuccessful appeal, where the respondent had made an offer, received no substantive engagement, and sought costs both of the appeal and of the costs application. It illustrates that the costs of obtaining a gross sum order are not automatically excluded from the order. They may themselves be ordered on a gross sum basis where the evidence enables the Court to fix them and doing so supports finality: [8]-[11].
The decision also illustrates that “broad brush” does not mean unsupported or arbitrary. The Court considered a costs consultant's report and the solicitor's evidence, while declining to conduct a detailed assessment. It accepted discounts already applied to the claimed fees and then rounded the total down: [12]-[16]. Nothing in the judgment states that every gross sum application requires a costs consultant, or that the same amount or process would be appropriate in other circumstances.
At [4], the Court says the power is discretionary and should be exercised only if it can act fairly and has sufficient confidence in the appropriate sum. In plain English, a court can set a lump-sum costs figure, but it needs a sound basis for the figure and must be able to do so fairly. It does not have to replicate a formal costs assessment.
At [5], the Court says the Walker Report gave it “sufficient confidence” in the appeal-cost amount. This explains why the Court considered the evidence adequate to fix a figure directly, particularly given Conway's limited opposition to that amount.
At [8], the Court states that costs generally follow the event. Here, Leeroy had succeeded on its application. The Court also took account of the unanswered $55,000 offer, not as an independent rule determining the amount, but as part of the circumstances explaining why Leeroy incurred the costs of making the application.
At [9], the Court rejects the argument that the practical benefit of a gross sum order should operate as a trade-off against paying the application costs. Its reasoning is that avoiding assessment could benefit both parties, while an assessment might itself produce costs payable by Conway and further interest.
At [14], the Court explains that a costs consultant's evidence can help the Court exercise its discretion judicially by giving it a reliable basis for a figure and reducing the risk of arbitrariness. The passage supports use of such evidence in this case; it does not establish that it is compulsory in every application.
At [16], the Court says no further discount was warranted because the claimed costs already incorporated discounts based on the consultant's evidence. It then rounded down the figure. The result reflects the Court's assessment of the evidence in this application, rather than a fixed formula.
The judgment is most directly relevant to a costs application with these features: a party has already obtained an order for costs; the court has allowed an application for a gross sum if agreement is not reached; the parties have not agreed; and the applicant supplies evidence from which the court can fix a reasonable sum without a formal assessment. Here, the evidence included a costs consultant's report for the appeal costs and a solicitor's affidavit with invoices for the application costs: [2], [10].
It is also relevant where the costs debtor does not substantively dispute the main costs figure but disputes whether the applicant should recover the costs of bringing the gross sum application. The Court treated those questions separately: entitlement to application costs, whether they should also be fixed gross sum, and quantum: [7].
The circumstances around settlement engagement may also be relevant. Leeroy had made a specific offer and received no substantive response before it needed to apply. The Court considered that history when applying the general rule and assessing why the application was required: [8], [15]. The judgment does not establish that silence will invariably produce the same costs result. Its reasoning is tied to the successful application and the absence of special circumstances identified by the Court.
Finally, the decision concerns a setting where formal assessment was expected to involve costs and delay. The Court relied on evidence about the likely allocation of assessment costs and noted potential interest during that process: [9]. If the evidentiary record, procedural history or dispute over quantum differs, the judgment does not dictate the outcome.
The supplied judgment provides no information about how later courts have treated this decision. It is dated 10 August 2026, and the text does not cite any subsequent decisions considering or applying it. No later treatment can therefore be established from the source provided.
The authorities it cites are earlier cases, not later treatments of this judgment. The Court refers to Ahern, Amirbeaggi and Gabrielle for the principles governing gross sum orders: [4]. It cites Leary on possible ways of identifying an appropriate gross sum and Beach Petroleum on the assistance provided by costs-consultant evidence: [14]. The underlying appeal decision, Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123, is identified as the decision in which Conway was ordered to pay appeal costs and Leeroy was given leave to seek a gross sum order if agreement failed: [1].
The judgment does not determine whether costs-consultant evidence is necessary in every gross sum application. It says such evidence is not unusual and was useful in this application, particularly in establishing a reliable basis for the sum: [14]. Whether it is needed in another case would depend on the material available and the issues in dispute.
Nor does the judgment specify a general method or formula for calculating a gross sum. It notes that an appropriate sum can be identified in different ways and applies a broad-brush approach to the evidence before it: [14], [16]. The decision does not define what degree of discount is generally appropriate.
The effect of settlement conduct is also context-dependent in this judgment. The Court relied on the failure to substantively respond to the $55,000 offer as part of its reasons for ordering the application costs, but it does not set out a universal rule for unanswered costs offers: [8]. Likewise, it does not decide how the costs of an application should be allocated where the applicant does not obtain the primary order sought.
Finally, the judgment applies CPA s 101 to interest and records that interest runs from the order date subject to s 101(3), while noting the possible accrual of interest during assessment under ss 101(4)-(5): [9], [17]. It does not discuss the operation of those provisions beyond the circumstances before it.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Conway v Leeroy Property Investments Pty Ltd (No 2) [2026] NSWCA 158
Hearing dates: On the papers
Date of orders: 10 August 2026
Decision date: 10 August 2026
Before: Kirk, McHugh and Free JJA at [1]
Decision: 1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the costs of the first respondent are assessed in the gross sum of $73,000.
2. Interest on the amount identified in order 1 is to run from 10 August 2026 pursuant to s 101 of the Civil Procedure Act, subject to the operation of subs (3) of that section.
Catchwords: COSTS – respondent awarded costs of appeal – failure of appellant to negotiate costs – application made for gross sum costs order – no dispute as to quantum of gross sum – order appropriate in the circumstances
COSTS – costs of the application – costs should follow the event – costs reasonably incurred including costs of costs consultant – gross sum costs order appropriate in the circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 98(4)(c), 101
Legal Profession Uniform Law (NSW) s 204(1)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Ahern v Aon Risk Services Australia (No 2) [2022] NSWCA 39
Amirbeaggi v EB (No 2) [2023] NSWCA 184
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123
Conway v Leeroy Property Investments Pty Ltd (No 2) [2025] NSWSC 1516
Gabrielle v Abood (No 4) [2023] NSWCA 100
Leary v Leary [1987] 1 WLR 72
Category: Consequential orders
Parties: Vashti Elizabeth Conway (Appellant)
Leeroy Property Investments Pty Ltd (First Respondent)
Tweed Shire Council (Second Respondent)
Representation: Counsel:
YPOL Lawyers, solicitors (Appellant)
M Seymour SC (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
YPOL Lawyers (Appellant)
Attwood Marshall Lawyers (First Respondent)
Hall & Wilcox (Second Respondent)
File Number(s): 2025/234931
Publication restriction: Nil
THE COURT: This proceeding involved an appeal concerning an application for judicial review brought by the appellant, Ms Conway, against the determination of the Tweed Shire Council to grant development consent for the construction of a dwelling on land owned by the first respondent, Leeroy Property Investments Pty Ltd. In the alternative Ms Conway sought an easement be granted by the Court over part of Leeroy’s land pursuant to s 88K of the Conveyancing Act 1919 (NSW). On 2 July 2026 the appeal was dismissed and Ms Conway was ordered to pay Leeroy’s costs: Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123. In the event that the parties did not agree on the amount of costs to be paid, Leeroy was given leave to apply for a gross sum costs order by 16 July 2026 in the absence of agreement having been reached as to the amount. Such an application was made. Neither side sought an oral hearing. This judgment addresses the application.
On 16 July 2026 Leeroy notified the Court that the parties had not reached agreement and that it sought to apply for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) (CPA). It relied upon a report produced by Ms Roslyn Walker, an experienced legal costs consultant (Walker Report). The application was supported by an affidavit of the solicitor with carriage of the matter, Ms Jade Carlson (Carlson Affidavit). Leeroy sought a gross sum costs order of $73,855.49, comprising:
$62,270.84, being the sum Ms Walker considered a costs assessor would determine to be the fair and reasonable costs of the appeal; and
$11,584.65, being the sum that Ms Carlson considered to be the likely amount a costs assessor would determine to be the fair and reasonable costs of the costs application, taking account of the approach applied by Ms Walker with respect to the costs of the appeal.
Ms Conway filed no responsive evidence but did file brief submissions. She did not oppose the costs sought in respect of the appeal, in the rounded down amount of $62,000, but submitted that she should not be ordered to pay the costs of the costs application. In support of that submission she noted that no order was made for Ms Conway to pay Leeroy’s costs of the application. She also submitted that the gross sum costs order benefitted Leeroy in lieu of the time and cost of a formal costs assessment process, and that benefit “is traded off the cost of making … the application”. In the alternative, she submitted that the sum of the costs of the costs application should be less than claimed by Leeroy.
The principles relating to the making of a gross sum costs order are not in dispute: note eg Ahern v Aon Risk Services Australia (No [2022] NSWCA 39 at [14]-[18]; [2023] NSWCA 184 at [3]-[6]. They were summarised sufficiently for current purposes in [2023] NSWCA 100 at [6] (citation omitted):
The power to make a gross sum costs order provided by s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is discretionary. Authority establishes that the discretion is not confined and may be exercised whenever the circumstances warrant its exercise; it should only be exercised when the Court considers that it can do so fairly between the parties, and that includes having sufficient confidence in arriving at an appropriate sum on the materials available; courts have typically applied a discount in assessing costs on a gross sum basis; and the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment.
The Walker Report gives the Court sufficient confidence as to the appropriateness of the proposed sum. Ms Conway does not, in substance, oppose that sum. The making of the order will avoid the expense, delay and aggravation likely to be involved in a contested costs assessment where there is reason here to consider that such contestation may be significant, as illustrated by what was put in issue in the gross sum assessment made by Pike J in the proceedings below, Conway v Leeroy Property Investments Pty Ltd (No 2) [2025] NSWSC 1516.
In the circumstances, a gross sum costs order should be made with respect to the costs of the appeal in the amount of $62,000, being the amount identified by Ms Walker rounded down in a manner appropriate to a broad brush assessment.
An order should be made that Ms Conway pay Leeroy’s costs. It is the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. Leeroy has, in the event, succeeded in obtaining the primary order sought. There are no special circumstances which suggest that the general rule ought to be departed from here; on the contrary. On 3 July 2026 Leeroy made an offer to settle its entitlement to its costs of the appeal for an all inclusive amount of $55,000. It did not receive any substantive reply or other engagement with that offer from Ms Conway before it was required to make its application on 16 July 2026. Therefore, not only did Ms Conway fail to accept an offer which represented a more favourable outcome than she obtained in this application, but she also failed to negotiate with Leeroy at all, leaving it with little choice but to go to the expense of preparing and making this application or alternatively proceeding to costs assessment.
Moreover, if the parties were to proceed to costs assessment, s 204(1) of the Legal Profession Uniform Law (NSW) provides that costs assessors are to determine the costs of a costs assessment and by whom they are payable. The Walker Report includes unchallenged evidence that it is likely a costs assessor would order the greater part of the costs of costs assessment to be payable by Ms Conway, if the matter went to assessment. There is no reason not to accept that evidence. Further, interest would accrue on Ms Conway’s costs liability during the process of costs assessment: CPA, ss 101(4)-(5). It is thus also in her interest for the matter to be dealt with more promptly through a gross sum costs order. It follows that the benefits of this application inure to both parties and there is little force in the submission that Leeroy should be required to forgo its costs of the application as some sort of trade off for the benefits of a gross sum costs order.
The next question is whether the costs of the costs application should be paid on a gross sum basis. They should be. The Court has detailed evidence of the costs incurred by Leeroy in preparing its application in the form of the Carlson Affidavit, which explains the costs of the costs application and annexes, amongst other things, the relevant invoices. Ms Conway has been afforded the opportunity to respond to that evidence and to make submissions. On the basis of the material before it, the Court is capable of arriving at an appropriate sum.
Additionally, as with the order for the costs of the appeal, the making of a gross sum order for the costs of the application will avoid the expense, delay and aggravation likely to be involved in a contested costs assessment. A key purpose of making a gross sum costs order for the costs of the appeal is finality, and that purpose would be defeated if the costs of the application were not themselves fixed: note Ahern at [46].
The final question is what the quantum of the ordered gross sum ought to be. The costs of the application sought by Leeroy total $11,584.65, comprised of $6,898.65 in professional fees (being 75% of the actual fees incurred), $836 in senior counsel’s fees (being 95% of the actual fees incurred), and $3850 in respect of Ms Walker’s actual fees in relation to her report. Ms Conway challenges that amount on the basis that the costs of making the application were excessive and inconsistent with the “broad brush” approach encouraged by the gross sum process, and that there was no need to employ a costs consultant where the application could have been supported by a solicitor’s affidavit, which would have involved no more than 6-8 hours in preparation (at a cost of some $3600-$4800 plus GST).
The costs claimed by Leeroy are not excessive. The Carlson Affidavit records that the professional fees incurred were in relation to the preparation of the letter of instruction and brief of documents to Ms Walker, the preparation of the Carlson Affidavit itself, and communications between Leeroy and its solicitors. The fees claimed do not appear on their face unfair or unreasonable.
An appropriate gross sum amount can be identified in a range of ways: note Leary v Leary [1987] 1 WLR 72 at 76. It is not unusual for a costs consultant to be engaged to give evidence to the Court in a gross sum costs application. Even in the context of applying a broad-brush approach, such evidence is of assistance to the Court in exercising its discretion in a judicial manner by establishing a reliable basis to fix an appropriate sum and mitigating against the injustice of arriving at a figure arbitrarily: note Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 121-123.
Here, the degree of preparation upon which Leeroy embarked was in the context of the adversarial nature with which Ms Conway approached the question of costs in the proceedings below, as recorded in the costs decision of Pike J. Leeroy’s apprehension about the lengths it would need to go to in preparing its application could have been assuaged through engagement by Ms Conway with Leeroy’s settlement offer. In context, Leeroy’s retention of Ms Walker was unsurprising and was fair and reasonable.
The costs claimed by Leeroy already incorporate discounts to the actual costs incurred (see [12] above). Those discounts followed the approach of the expert evidence of Ms Walker and constitute fair and reasonable reflections of what would likely occur if the matter were to proceed to assessment. Accordingly, no further discount is warranted, other than rounding the amount down in a manner appropriate on such an application. Ms Conway should pay Leeroy’s costs of the costs application in the gross sum of $11,000.
So as to keep things simple, the two amounts should be dealt with in one order, making for a total gross sum costs order of $73,000, and post-judgment interest should be taken to run from the date of making the order (but allowing 28 days to pay consistently with s 101(3) of the CPA).
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Conway
Leeroy Property Investments Pty Ltd (No 2)
The first respondent’s costs were assessed in a gross sum of $73,000, with interest running from 10 August 2026 subject to s 101(3) of the Civil Procedure Act.