Dennis G. Pamplin Pty Limited atf the Dennis G Pamplin Family Trust v Irwin in her capacity & as administratrix of the estate of the late Adrian Dennis Pamplin

Representation: Counsel:
P G Sharp (First Defendant)
Solicitors:
Jake McKinley (Plaintiffs)
Mersal & Associates Pty Ltd (First Defendant)
Holman Webb Lawyers (Second Defendant)

File Number(s): 2024/00448682

Publication restriction: Nil

JUDGMENT

1. On 26 March 2025, I made orders relevantly to the following effect:

(2) Leave is granted to the plaintiffs to file a notice of discontinuance on the following terms:

(a) the plaintiffs discontinue the whole of the proceedings;

(b) the plaintiffs to pay the first defendant’s costs of the proceedings;

(c) the plaintiffs to pay the second defendants’ costs of the proceedings on the indemnity basis on terms that the second defendants’ entitlement not be levied, charged or executed against the first defendant’s 50 percent interest in the properties with title folio identifiers X/XXXX, X/XXXX, X/XXXX and X/XXXX (the Properties) or the proceeds of sale from the Properties.

(3) Liberty to the first defendant to bring an application pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) for a gross sum costs order, such application, if any, to be filed within 14 days.

2. I published reasons for those orders: see Dennis G. Pamplin Pty Limited atf the Dennis G Pamplin Family Trust v Ann Margaret Irwin in her capacity & as administratrix of the estate of the late Adrian Dennis Pamplin [2025] NSWSC 270 (discontinuance judgment). These reasons assume familiarity with my discontinuance judgment.

3. Pursuant to order 3, the first defendant now seeks a gross sum costs order for the sum of $66,000 (ex. GST), payable forthwith.

4. The plaintiffs have indicated that they do not intend to file evidence or submissions in the matter. The first defendant has provided written submissions as well as an affidavit from her instructing solicitor, Mr Frank Mersal sworn 10 April 2025 and exhibit FFM8 in support of the orders sought.

Relevant Principles

5. The principles guiding the exercise of the Court’s discretion under s 98 in relation to a gross sum costs order are well settled. I recently summarised them in Tran v Bakour (No 2) [2025] NSWSC 272 at [26] and following.

Determination

6. I am satisfied that it is appropriate to make a gross sum costs order in the present case. It is clear that there has been a lengthy history of litigation between the parties. Making a gross sum costs order will facilitate the bringing to an end of that litigation expeditiously and economically without the need for a formal assessment process. The history of litigation between the parties suggests that any assessment would likely be contested.

7. I am also satisfied that the Court has sufficient material before it to make a fair and reasonable assessment of an appropriate gross sum. The evidence includes four invoices issued by the first defendant’s lawyers to her and include the invoices of senior and junior counsel retained in the matter. Some of the costs set out in those invoices are not included in the gross sum sought as they relate to a separate application in which the Court ordered there be no order as to costs. Those costs have been struck through.

8. I have otherwise reviewed the invoices and am satisfied that the rates which have been charged are reasonable and that most of the work has been done at the lowest cost of the practitioners involved – being junior counsel.

9. The amount claimed of $66,000 is based on a 20% discount to the solicitors’ fees and a 10% discount to counsels’ fees and other disbursements. A further 10% reduction has then been applied. On top of this, an amount of $7,500 is sought for the costs of this gross sum application. This amount seems reasonable, supported as it is, along with the other amounts claimed, by the opinion of Mr Mersal who has been practising as a solicitor since 2006.

10. For these reasons I am satisfied that it is appropriate to make a gross sum costs order in the amount of $66,000 (ex. GST).

11. The order of the Court is:

12. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the plaintiffs pay the first defendant’s costs pursuant to order (2)(b) of the orders made on 26 March 2025 in the gross sum of $66,000 (ex. GST).

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