Elias v Smidt (No 2)

Legislation Cited: Australian Consumer Law ss 236, 237
Corporations Act 2001 (Cth) ss 436A, 436B, 436C, 453, 453B
Legal Profession Uniform Law Application Regulation 2015 reg 60
Taxation Administration Act 1953 (Cth) sch 1 s 269-35

Cases Cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Calderbank v Calderbank [1975] 3 All ER 333
Cassaniti v Katavic (No 2) [2023] NSWCA 107
Crystal Auburn Pty Ltd v I L Wollerman Pty Ltd [2001] FCA 735
Elias v Smidt [2025] NSWSC 762
Firma C-Trade SA v Newcastle Protection and Indemnity Association [1991] 2 AC 1
Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 104 NSWLR 1; [2020] NSWCA 233
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
S&A Law Pty Ltd v Pasquini [2025] NSWSC 728
Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235
Travers v Richardson (1920) 20 SR (NSW) 367
Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; [2001] HCA 53

Category: Consequential orders

Parties: Charbel Elias (Plaintiff)
Lee Smidt (First Defendant)
Just Law Group Pty Ltd (Second Defendant)

Representation: Counsel:
MJ Jones (Plaintiff)
Solicitors:
Saile Law Pty Ltd (Plaintiff)

File Number(s): 2025/00144117

Publication restriction: Nil

ex tempore JUDGMENT

1. LEEMING JA: By notice of motion filed on 13 August 2025, the plaintiff, Mr Charbel Elias, seeks the following orders consequent upon orders earlier made in his favour on 14 July 2025 in the nature of a default judgment: Elias v Smidt [2025] NSWSC 762. The orders made on that occasion were as follows:

1. Judgment in favour of the plaintiff against the first and second defendants in the amount of $225,161.29.

2. The judgments in order 1 are in the nature of default judgments and in substance reflect an entitlement to indemnity by the first and second defendants in respect of the unpaid liability of the plaintiff for Director’s Penalty Notices issued in respect of the second defendant.

3. Consistently with order 2 above, the plaintiff may take no step, without leave, to execute either of the judgments in order 1 above unless he establishes actual loss pursuant to the Director’s Penalty Notices.

4. Direct the plaintiff to serve each of the first and second defendants copies of these orders and the Court’s reasons by email at lee.smidt@justlaw.group and also Mr Christopher Nolan, the Law Society’s appointed manager of that practice.

5. Grant liberty to all parties and the Law Society to apply on 3 business days’ notice by email to my Associate.

6. Stand over the matter for further directions at 9.30am on Friday 1 August 2025.

2. The orders in the notice of motion are as follows:

1. Pursuant to the Australian Consumer Law s237 upon Mr Elias’ express undertaking to the Court that the amounts recovered will be strictly used to pay the identified likely future loss, being the Director Penalty Notices issued by the Australian Tax Office, grants leave to the plaintiff, Mr Elias, to enforce the judgment debt in accordance with the orders made orders made 14 July 2025.

2. Upon enforcement of the judgment and receipt of funds satisfying part of or the whole judgment debt, Mr Elias must pay down the Director Penalty Notices or part thereof (as the recovered amount provides) within 7 days of receipt of the amount.

3. Notes Mr Elias’ undertaking to the effect of Order 1.

4. In the alternative to [1] – [3] above, pursuant to the Australian Consumer Law s237, vary the conditions in orders made 14 July 2025 allowing Mr Elias to enforce the judgment debt.

5. Pursuant to Civil Procedure Act s98 and the Court’s inherent jurisdiction, order the defendants pay Mr Elias’ costs of proceedings in the sum of $92,702.49 as a gross sum costs order.

3. The notice of motion does not, in terms, reflect the substantive application as developed in written oral submissions before me by Mr Jones of counsel who, as on the earlier occasion, appeared for Mr Elias. There was no application to vary the extant orders. In substance two claims are made. First, it is said that by way of a term of the grant of leave Mr Elias should be permitted to execute against Ms Smidt on his undertaking that all funds recovered will promptly be remitted to the Commissioner of Taxation. Alternatively, it is said that Mr Elias should be granted leave because of the case he has made out a case of suffering actual loss.

4. As on the previous occasion, there has been no appearance from either defendant. Ms Smidt and the company were called outside the Court before the hearing proceeded and I am satisfied that the motion, supporting affidavit and Mr Jones’ submissions were supplied to Mr Smidt by email at the same time they were supplied to the Court.

5. The evidence establishes that the second defendant, Just Law Group Pty Ltd, is no longer a company which appears on the register maintained by The Law Society of New South Wales in accordance with reg 60 of the Legal Profession Uniform Law Application Regulation 2015; the consequence is that that company can no longer lawfully provide legal services.

Background

6. A more detailed background is contained in my earlier reasons for judgment at [9]–[27]. For present purposes, an abbreviated summary will suffice.

7. Until around February or March 2024, Mr Elias, who is a solicitor, was one of two directors of Just Law Group. His co-director was Ms Smidt. She is not a legal practitioner.

8. Mr Elias’ case is that he left it to her to discharge the tax obligations of the company. He received various Director Penalty Notices stating that he personally was liable to an amount of some $230,599.40 because the company had unpaid liabilities, the superannuation guarantee, GST and PAYG amounts.

9. Each notice was dated 29 May 2024. Each notice advised that there was a 21 day period within which certain steps could be taken. Those steps included causing the company to be wound up, causing an administrator to be appointed under ss 436A, 436B or 436C of the Corporations Act 2001 (Cth), or causing a small business restructuring practitioner to be appointed under s 453B of the Act.

10. There was correspondence between Mr Elias, who had by this stage resigned, and Ms Smidt, culminating in a separate solicitor acting for Ms Smidt providing a copy of an irrevocable undertaking, signed by Ms Smidt, that a small business restructuring practitioner under s 453 of the Corporations Act would be appointed within time.

11. Without pausing to give a full account of the details of what thereafter happened, that undertaking was not complied with and the ATO took two steps to recover from Mr Elias the amounts due under the Director Penalty Notices.

12. One was appropriating to itself a debt owed by the ATO to Mr Elias, representing a tax return, in the amount of $5,438.11. That amount has been repaid by Ms Smidt; it was repaid during the course of litigation in this court. The consequence is that that amount has been excluded from the default judgment of $225,161.29 entered on 14 July 2025.

13. The second step taken by the ATO was to issue a garnishee notice upon a bank account in Mr Elias’ name held by Westpac. That step caused no direct loss to Mr Elias because there were no funds in the bank account at the time.

14. On 14 April 2025, Mr Elias commenced proceedings in this Court, including seeking and obtaining orders for substituted service and an asset preservation order.

15. On 2 June 2025, both of Ms Smidt and her company, Just Law Group, filed submitting appearances. However, curiously, that was followed by an email of 3 June 2025 and further written communications with the Court in the days thereafter, culminating in a directions hearing before Hammerschlag CJ in Eq on 6 June 2025, during all of which it seemed that Ms Smidt and Just Law Group might seek to withdraw their submitting appearances. Hammerschlag CJ in Eq made it plain that neither defendant could take any steps until they had put on a motion to vary their appearances: see [39] of my earlier judgment.

16. The subsequent events and the procedural history of this litigation do not, for present purposes, matter. It suffices to say that at no stage has either defendant applied to withdraw their submitting appearances. Following delivery of my judgment on 14 July 2025, there was a directions hearing on 1 August 2025, at which the present application was flagged by Mr Jones. There was an informal exchange between him and me concerning the difficulties of seeking to execute judgment in circumstances where, as of that time, no steps had been taken apart from the two matters referred to above by the ATO to enforce the Director Penalty Notices served on him.

17. There followed this exchange:

HIS HONOUR: You received a notice a while ago. How much money has your client paid to the Commissioner?

JONES: It’s as it was at the hearing so

HIS HONOUR: So $5,000 which you have been fully recompensed.

JONES: Yes.

HIS HONOUR: And you want to execute the judgment in advance of him paying anything more.

JONES: Yes, your Honour.

HIS HONOUR: Tell me how are you going to do that? I am trying to save you some time at the end of day.

JONES: I understand that your Honour. One of the challenges, as your Honour said in the judgment, the condition is that he suffered loss. What I say is that he has not suffered loss yet monetarily but there is a difficulty now with Mr Elias obtaining finance. Whilst the debt hangs over his head, he is unable to discharge that debt.

HIS HONOUR: Sure.

JONES: So, what I propose is something akin to what might happen, perhaps, on the 66G application where there is a trustee who holds the moneys and then is only authorised to pay down that debt if the judgment can be

HIS HONOUR: What’s the assets over which this trustee is going to have legal title?

JONES: The moneys recovered on the default judgment.

HIS HONOUR: I can't stop you from making any application. Can I suggest that if you want to go down this path, try to find one authority. There have been centuries where co-sureties have been liable because they have guaranteed someone’s debt where this sort of situation has arisen and I’m not as I sit here [aware] of anything like the sorts of orders that you’re after whereby in advance of payments to the creditor, one co surety, one co guarantor, one person who enjoys a right of contribution can actually enforce against another prior to the primary creditor being paid.

So, if you want to make some law on an ex parte application, I’m not here to stop you from doing so, but I am to encourage you to think it through and see if there’s some authority that supports you. Dering v Earl of Winchelsea is a decision from the 18th century. So, you have got about 250 years’ worth of equity jurisprudence where this might have happened. I am not aware of it happening.

If you cannot find any authority, make sure you have some principled reasons to persuade me to make some law.

JONES: Okay. I am grateful your Honour.

The factual position in which Mr Elias finds himself

16. At the factual level, the position on the evidence before me remains unchanged.

17. Mr Elias faces the potential of being liable in the amounts in the Director Penalties Notices. However, aside from the two matters mentioned above, the ATO has taken no further steps to enforce such liability as Mr Elias has.

18. As noted in [83] of my earlier reasons, Mr Elias had engaged in correspondence with the ATO concerning the defence under s 269-35 of sch 1 to the Taxation Administration Act 1953 (Cth). Subsections (2) and (3) provide that:

269-35 Defences

All reasonable steps

(2) You are not liable to a penalty under this Division if:

(a) you took all reasonable steps to ensure that one of the following happened:

(i) the directors caused the company to comply with its obligation;

(ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;

(iia) the directors caused a small business restructuring practitioner for the company to be appointed under section 453B of that Act;

(iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or

(b) there were no reasonable steps you could have taken to ensure that any of those things happened.

(3) In determining what are reasonable steps for the purposes of subsection (2), have regard to:

(a) when, and for how long, you were a director and took part in the management of the company; and

(b) all other relevant circumstances.

19. In the correspondence with the ATO, Mr Elias maintained that he had taken all reasonable steps within the meaning of that section. The ATO took a different view. That is a matter that, on the evidence, remains unresolved.

20. The evidence is also silent as to what steps, if any, the ATO is taking against Ms Smidt or Just Law Group Pty Ltd. There was some suggestion in the correspondence tendered on the earlier occasion that Ms Smidt was negotiating to obtain the benefit of an instalment plan with the Commissioner. It is entirely unclear whether any such plan has been agreed or indeed whether there were even any negotiations to that effect.

21. In substance, Mr Elias has the benefit, by reason of what I have found to be the contravention of the Australian Consumer Law made by each of the defendants when providing him with the written undertaking, of orders that they indemnify him for any liability he suffers by reason of the Director Penalty Notices. But that falls short of relieving him from the possibility that the ATO might seek to enforce its rights against him.

22. Mr Elias maintains that the position, as things stand, is quite unsatisfactory from his point of view. He says in his affidavit, and I accept, that (a) he is suffering from significant personal distress by reason of the liability, (b) he has had difficulty obtaining finance through a business overdraft, which is required for cash flow issues at his new incorporated law practice, (c) there are likely to be difficulties in obtaining the approval for a home loan, (d) there is a high risk that the ATO will report his debt to a registered credit reporting agency if it is not discharged, and (e) at the moment, he has a very good credit rating because he has not defaulted on credit payments in the past.

23. Mr Elias is also concerned about his liability to pay interest and the likelihood that the ATO will continue to offset any future tax credits against outstanding tax liabilities. That said, and to be quite clear about it, aside from the amount of $5,438.11 mentioned above, there is no evidence of that having occurred. He also says that it is likely that the ATO will initiate legal recovery proceedings against him and that if that occurs, he will incur significant costs. That said, it is now more than 15 months since the Director Penalty Notices were issued and no such proceedings have been commenced.

24. Nonetheless, for those reasons, Mr Elias seeks to obtain greater relief than this Court has hitherto provided him.

The basis of Mr Elias’ application

25. During the hearing, I referred to the different approaches taken by Equity and Common Law when a person has the benefit of an indemnity, by reference to Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; [2001] HCA 53 at [17]. The High Court there referred to what Lord Brandon of Oakbrook had said in Firma C-Trade SA v Newcastle Protection and Indemnity Association [1991] 2 AC 1 at 28:

There is no doubt that before the passing of the Supreme Court of Judicature Acts 1873 and 1875, there was a difference between the remedies available to enforce an ordinary contract of indemnity ... at law on the one hand and in equity on the other. At law the party to be indemnified had to discharge the liability himself first and then sue the indemnifier for damages to breach of contract. In equity an ordinary contract of indemnity could be directed to be specifically performed by ordering that the indemnifier should pay the amount concerned directly to the third party to whom the liability was owed, or in some cases to the party to be indemnified ... There is further no doubt that since the passing of the Supreme Court of Judicature Acts 1873 and 1875 the equitable remedy has prevailed over the remedy at law.

26. In Victorian WorkCover at [17], it was said:

In equity, at least if the obligation to indemnify be construed as one to prevent the plaintiff being called upon to pay in the first instance, the indemnifying party may be ordered to pay the money direct to the creditor and so relieve the plaintiff from sustaining that outgoing.

27. Another decision cited by the High Court is Travers v Richardson (1920) 20 SR (NSW) 367 at 370-371 where Street CJ in Eq said:

In Re Richardson ([1911] 2 KB 705), Cozens-Hardy MR says (at 709): “Equity has always taken a wider and more liberal view of these rights of indemnity than the old Common Law Courts did. It is settled at common law that, given a contract of indemnity, no action could be maintained unless actual loss had been incurred. The common law view was first pay and then come to the Court under your agreement to indemnify. In equity that was not the view taken. Equity has always recognised the existence of a larger and wider right in the person entitled to indemnity.”

28. Here, Mr Elias seeks, in substance, to rely upon the broader equitable approach. He also invokes the flexibility to be found in what is now s 237 of the Australian Consumer Law, which empower a Court to make a wide range of orders, including in circumstances where loss or damage is likely to be suffered.

29. At the level of general principle, he relied upon what was said in Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114, Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 104 NSWLR 1; [2020] NSWCA 233 and Cassaniti v Katavic (No 2) [2023] NSWCA 107 at [106]. Those decisions make reference to the breadth of the approach in equity and under the Australian Consumer Law.

30. Mr Elias contends that the orders sought re appropriate, given the circumstances in which he is placed.

Consideration

31. The width of the power is undoubted. The critical question, for present purposes, is not so much the existence of power as the appropriateness of its exercise. It is perfectly plain, and Mr Jones made no submission to the contrary, that the orders that he invites the Court to make are discretionary. They are the opposite, of course, of a litigant’s entitlement to damages as of right at common law (or, it may be added pursuant to s 236 of the Australian Consumer Law).

32. There are three main reasons why I would decline to order the substantive relief sought by Mr Elias. One is the unresolved question of whether there is any liability at all by Mr Elias to the ATO. The second is the lack of information concerning the ATO’s dealings with Ms Smidt. The third is the inappropriateness of permitting Mr Elias to, in his words, act as the ATO’s debt collector by way of executing the judgment he has obtained. I shall say something about each of these.

33. First of all, and contrary to the submissions repeatedly made that Mr Elias was “left with no choice” given the unresolved dispute between him and the ATO, I do not accept that that was so. It was and remains possible to him to resolve whether or not he is liable to the ATO. The fact of the matter is that he denies that he owes the ATO anything. In a formal way he has contended, and he may well be right (I am not expressing a view one way or the other), that he took all reasonable steps within the meaning of s 269-35 and therefore has no liability.

34. The correspondence shows that there is a dispute between him and the ATO on that point. The notion of unresolved disputes flagged in correspondence, particularly concerning obligations to pay tax, is one that is familiar in the Australian legal system. There are a number of mechanisms which are available to a taxpayer (or for that matter the Commissioner) to resolve such a dispute. One is litigation. It is open for example, to seek declaratory relief by way of a negative declaration that Mr Elias has engaged, by what he did in the 21 days after receipt of the Director Penalty Notices, the defence in s 269-35. There are probably other less formal means of doing so.

35. But the fact of the matter is that Mr Elias, on the one hand, contests any liability to the ATO, but on the other hand seeks to enforce the judgment he has obtained against his fellow former director on the basis that he may be liable. It is not the case that Mr Elias has no alternatives available in order to remove what I fully accept is the distress and financially damaging consequences of having a disputed tax debt with the Commissioner.

36. Secondly, the evidence does not establish what steps, if any, have been taken by the ATO against Ms Smidt. It is possible, to refer to the example given during argument, that she and the ATO have entered into an instalment arrangement to repay what was originally the company’s debt over a period of time. It strikes me that it would be very unfair to Ms Smidt, on the one hand to have formally agreed with the creditor to pay over a period of time, but on the other hand to be forced, by reason of the execution of a judgment, by a man who does not even concede that he is liable to the ATO, to pay the money in full.

37. Thirdly, private tax collection on behalf of the ATO strikes me as foreign to the Australian legal system. The ATO is a sophisticated organisation and is free to make commercial decisions about how to collect the revenue. It may well be that it has taken no steps to pursue Ms Smidt, just as it has taken no steps so far, apart from the two that I have mentioned, to pursue Mr Elias. It may be that the ATO is waiting to see if there are funds which it can garnishee or otherwise appropriate to itself, in a manner which is cost effective having regard to the size of the debt. It strikes me that one would require a very powerful reason to authorise Mr Elias to take a more aggressive stance in collecting public funds owed by Ms Smidt than the ATO itself hitherto has taken. I do not accept that it is necessarily in the public interest to permit Mr Elias to recover the debt Ms Smidt owes to the ATO on its behalf.

38. On 1 August 2025, I referred to what I regarded as the novelty in the orders sought by Mr Elias and suggested that it would be desirable, if they were pressed, that he supply authority supportive of that position. I accept, as I have noted above, the general width of the discretion in equity in the cases I have referred to and I would accept that it is at least arguable that a similar width attends the power under s 237 of the Australian Consumer Law, that exercise of discretion being modelled upon the existing equitable analogues; cf Crystal Auburn Pty Ltd v I L Wollerman Pty Ltd [2001] FCA 735 at [2]. But no authorities were provided squarely supportive of the relief sought in the present case.

39. To be clear about it, although I have mentioned three considerations, I regard the first as dispositive. I am not for a moment critical of Mr Elias not wishing to elect to abandon his already adumbrated defence under s 269-35 but I do not see how on the one hand he can maintain that he owes nothing to the ATO and simultaneously enforce the default judgment against Ms Smidt on the ATO’s behalf. Another way of illustrating that point is that in any such contemplated proceedings, in my view it would be open to Ms Smidt to contend that Mr Elias should not be able to enforce the debt against her because he in truth has no liability, he having made out the defence under s 269B-35 and therefore has no interest in pursuing the debt against her.

40. Against all of that, which was squarely flagged during submissions to me, it was said that even so and even assuming, favourably to Mr Elias and adversely to the success of his application before me, that he did make out a defence under s 269-35, nonetheless he would be exposed to irrecoverable damage in the form at least of costs and probably other forms of damage by way of consequential loss and the inability to obtain finance in the meantime even if he succeeded against the ATO. That may be so. But the fact that resolving a dispute between Mr Elias and the Tax Office will take time and money does not to my mind answer the question which is raised by his application that he seeks to enforce a debt against Ms Smidt while at the same time denying that he owes anything to the Tax Office.

41. For those reasons, I am unpersuaded that Mr Elias has made out any actual loss within the meaning of order 3 made on 14 July 2025. I am also unsatisfied that any of the other substantive relief should be granted to him, even on terms that he undertake to pay to the ATO any amounts he recovers from Ms Smidt.

Costs

42. I turn to costs. I indicated before giving these reasons that I would not be able wholly to address the issue of costs. In part that was because of a question of law, and in part it was due to the tender at the hearing of some 170 pages of evidence relating to costs. However, I will do what I can.

43. First of all, I accept that Mr Elias has incurred significant costs in coming to Court, particularly at the beginning of litigation where substituted service and asset preservation orders were obtained.

44. Secondly, I accept that in principle the appropriate exercise of the costs discretion will be a costs order in his favour.

45. Thirdly, Mr Elias relied upon a Calderbank letter dated 23 June 2025. That letter contains an offer that both defendants consent to “default judgment” against them and pay 50% of the plaintiff’s costs incurred to date. The offer made in the letter of 23 June 2025 was expressed to expire at 5pm on Friday, 27 June 2025 or if they took any steps to vary or withdraw their appearances or defend the matter inconsistently with the submitting appearance filed in the proceedings.

46. Mr Jones accepted that he needed to establish that it was unreasonable for Ms Smidt and Just Law Group to make no response to that offer in order to engage the principles in Calderbank v Calderbank [1975] 3 All ER 333. I am not persuaded it was unreasonable of them to take that course.

47. For one thing, they were given a period of no longer than four days to consider the offer.

48. For a second, it is not entirely clear what was meant by “default judgment” against them in circumstances where at that time not only pecuniary orders were sought but also an order that Just Law Group be wound up was sought against them.

49. For a third, the letter did not explain what 50% of the plaintiff’s costs incurred to date were.

50. For those reasons I am not persuaded that that correspondence is a relevant consideration in the exercise of the discretion as to costs.

51. Fourthly, the more difficult consideration is that I have the benefit of an itemised bill of costs from Saile Law which is the incorporated law practice acting for Mr Elias. Mr Elias is its sole director and shareholder as well as its director solicitor. There is perhaps an unresolved question as to whether the principles in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 apply in a case such as this. Mr Elias has directed me to what was said in Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235 at [97]-[101] and more recently in S&A Law Pty Ltd v Pasquini [2025] NSWSC 728 at [5] in support of the proposition that notwithstanding that a large proportion of the legal work done to date in this matter has been done by Mr Elias himself in his capacity as a lawyer in his incorporated practice, he is entitled to charge and recover at the nominated hourly rates. That may be the case.

52. However, at the close of submissions, I expressed my concern that it seemed that this might be the first case in this jurisdiction where this point was squarely raised and I wished for there to be an opportunity for a short period of research in case the point had been addressed in some earlier decision of which I had not been made aware. As I have said, the costs incurred by Mr Elias on behalf of his law practice retained to act for himself are the largest component of the costs involved.

53. Accordingly, the orders I make will involve a regime whereby I will within, say, the next 48 hours give notice of any decisions (or the fact that there are no decisions) on point that I have been able to locate, but if there are such decisions there will be a further short period of time for Mr Elias to respond to them before I proceed with the gross sum assessment that I am invited to do. That approach has the incidental advantage that if on reflection, having gone to the effort of having prepared a bill of costs in itemised form, Mr Elias seeks to proceed to assessment rather than before me on a gross sum basis, he will be able to take that course.

54. Accordingly, the orders that I make are as follows:

1. Dismiss paras 1-4 of the notice of motion filed 13 August 2025.

2. Note that by 4pm on Wednesday, 3 September 2025 I will notify the parties of any decisions concerning the recoverability of costs by legal practitioners employed in law practices owned and controlled by them with a view to Mr Elias providing any response by Friday afternoon.

HIS HONOUR: Mr Jones? It can be a little later if you want. I’m just writing out a time.

JONES: That’s suitable.

HIS HONOUR: By 4pm Friday, 5 September 2025.

3. Otherwise, reserve determination on Mr Elias’ application for a gross sum costs order.

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