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[2026] NSWCA 36
procedural. Mr Filby was ordered to pay TEG Live $84,500 for the Court of Appeal proceedings and $5,000 for the motion, with interest as specified; no gross sum order was made for first-instance costs.
TEG Live asked the Court of Appeal to set a single amount for costs rather than send them to a formal assessment. The Court considered only the appeal costs and the part of the motion relating to those costs. It found that the available invoices and evidence allowed a fair estimate, but that some legal costs were disproportionate to the relatively confined appeal. It ordered $84,500 for the appeal and $5,000 for the relevant part of the motion. Interest on the appeal costs runs from 25 March 2025 because TEG Live brought its motion later than the Court considered reasonable. The Court did not decide the first instance costs claim, leaving open a separate application concerning those costs.
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2,195 words · generated 08/10/2026
This is a costs judgment delivered by Stern JA in the New South Wales Court of Appeal on 24 March 2026. It concerns TEG Live Pty Ltd’s application for a gross sum costs order after Mark Filby’s appeal was dismissed. The underlying appeal concerned Mr Filby’s claim that TEG Live breached obligations of confidence and used his confidential information. The Court of Appeal dismissed that appeal on 19 December 2023 and ordered Mr Filby to pay TEG Live’s appeal costs. The High Court later refused Mr Filby’s out-of-time special leave application, with costs, on 8 August 2024. [1]
6 cited instruments linked from this judgment.
TEG Live’s motion, filed on 25 September 2025, sought a total of $796,857.76, comprising costs for first instance and appeal proceedings, claimed interest, and costs of the motion. [3] Stern JA did not determine the claim for first instance costs. The Court of Appeal was not the court that heard those proceedings, and the first instance judge had a more direct basis for considering them. [4], [34] The decision therefore addresses the appeal costs and the motion costs attributable to the appeal.
Mr Filby did not file evidence or submissions and did not otherwise engage with the motion. The judgment sets out attempts to serve him, including unsuccessful attempts at an address and email address, followed by service by text message and LinkedIn under court orders. The Court was satisfied that personal service was practically impossible and that text service would in all reasonable probability bring the documents to his attention, even if he did not open the links. [12]-[19] It concluded that he had a reasonable and adequate opportunity to be heard. [32]
The orders required Mr Filby to pay $84,500 for the Court of Appeal proceedings and $5,000 for the motion insofar as it related to those proceedings. Interest on the appeal costs runs at the prescribed rate from 25 March 2025. The judgment notes that interest on the motion costs is payable under s 101(4) of the Civil Procedure Act 2005 (NSW). [56]
Section 98(4) of the Civil Procedure Act gives the court power to make a gross sum costs order before costs are referred for assessment. The authorities discussed in the judgment describe that power as broad, but the court still needs sufficient confidence in the material to estimate an appropriate sum fairly. [28]-[29] The purpose is not to reproduce a formal assessment item by item. A broad-brush approach can be used, provided the result is logical, fair and reasonable. [29]
A gross sum order may be particularly suitable where formal assessment would bring further expense, delay and aggravation, or where the cost of assessment may not be recovered. [28] Here, the Court considered that a detailed assessment would involve reviewing steps in litigation extending over a protracted period, even though the appeal itself was not particularly complex. It also considered the evidence that Mr Filby might be unable to meet a substantial liability, and that there was no indication the parties would agree on the costs. [35] The Court concluded that resolving the appeal-related costs directly best served the just, quick and cheap determination of that issue. [36]
The amount was determined by examining the evidence, rather than accepting TEG Live’s overall figure as a starting point. [39] Counsel’s fees were $24,050 excluding GST. Stern JA allowed approximately 95 per cent, or $22,850, taking account of the rate and counsel’s experience. [40] Corrs’ fees were considered separately. The appeal involved five grounds of appeal and two grounds in a notice of contention, with some overlap. In substance, the issues concerned specificity, whether the circumstances imported an obligation of confidence, and whether confidential information had been misused. The factual focus was largely one meeting on 26 February 2013. [42]
The judgment accepted that the appeal required detailed examination of evidence and legal principles, but found the claimed solicitor costs disproportionate to a confined, one-day appeal. It highlighted that 103.3 hours of senior associate time and 52.7 hours of associate time had been billed, and considered that a substantial reduction was warranted. [43] It allowed $60,000 for Corrs’ costs and $1,650 for disbursements, producing a total of $84,500. That was about 58 per cent of the total costs TEG Live said it had incurred. The Court considered the figure proportionate and fair, and said it accommodated the contingencies of a formal assessment. [44]-[45]
The Court declined to determine first instance costs because the appeal court was not as well placed as the judge who heard the first instance proceedings. The lion’s share of the amount sought related to those proceedings, and solicitor evidence could not replace the first instance judge’s direct knowledge. [34] The judgment expressly preserves TEG Live’s ability to make a separate application concerning those costs. [4], [55]
Delay also affected the outcome. The motion was filed about 21 months after the appeal judgment and orders, and about 13 months after the High Court refused special leave. [25] The Court considered the explanation for delay, including the departure of lawyers who had worked on the matter, but found that the motion should reasonably have been filed within six months of the appeal orders. [26]-[27] It did not refuse the gross sum order because of delay, but treated delay as relevant to the motion costs and interest. [33]
The judgment does not purport to change the law on gross sum costs orders. It applies established principles under s 98, drawing on authorities including Hamod v State of New South Wales, Harrison v Schipp, Gabrielle v Abood (No 4) and Rahman v Rahman (No 2). The principles stated are that the discretion is broad; the court may use a broad-brush estimate; and the evidence must still permit a sufficiently reliable estimate that is fair between the parties. [28]-[30]
The decision illustrates the application of those principles to appeal costs supported by invoices containing narratives of work. [31] It also illustrates that a court can conclude that an overall claim is not proportionate and make a substantially lower order after considering the type and volume of work, the issues, and the length and nature of the appeal. [42]-[45]
On the division of responsibility between courts, the judgment applies the general approach that the Court of Appeal should not ordinarily determine a gross sum application concerning first instance proceedings. The stated reason is practical and evidentiary: the judge who heard those proceedings has direct knowledge and is better placed to assess them. [34] The decision did not determine whether TEG Live would receive any particular first instance sum. It left that question open. [4], [55]
On interest, the judgment applies ss 101(4) and (5). Unless the court orders otherwise, interest is payable on costs, and the court may specify the rate and start date. The judgment describes the statutory position, relying on 123 259 932 Pty Ltd v Cessnock City Council (Costs) and Hutley v Cosco (No 2), and adjusts the start date to reflect the delay in bringing the motion. [47]-[50] It does not establish a general rule that interest must begin six months after an earlier costs order; the date was selected in the circumstances of this application. [49]
At [29], the Court said the material must enable “a sufficiently reliable calculation or estimate of an appropriate costs sum”. In plain English, a court cannot simply select a figure without a sound evidentiary basis. A formal assessment is not necessary, but the evidence must make a fair estimate possible.
At [29], the judgment also describes the approach as “logical, fair and reasonable”. This captures the constraint on the court’s broad discretion: flexibility in method does not remove the need for a rational and even-handed result.
At [34], the Court explains that solicitor affidavits cannot replace the “very real benefit” held by the judge who conducted the first instance proceedings. In practical terms, an appellate court may have the invoices and a solicitor’s account of the work, but may lack the direct familiarity needed to evaluate the costs of proceedings it did not hear.
At [36], the Court says it was “overwhelmingly in the interests of the just, quick and cheap determination” to make a gross sum order for appeal costs and the related motion. This explains the procedural advantage the Court saw in fixing the amount itself rather than requiring another assessment process.
At [43], the Court identifies billed time that it considered disproportionate to the nature and complexity of the appeal. The point is not that the judgment sets a generally applicable cap on solicitor hours. It is that the Court scrutinised the recorded work against the particular appeal, including its one-day hearing and limited principal issues.
At [49], the Court explains why interest began on 25 March 2025 rather than at an earlier point. It considered that the application should reasonably have been brought within six months of the appeal orders, and adjusted the interest period to reflect that conclusion.
The decision is most relevant to applications for gross sum costs orders where there is a prior costs entitlement, the applicant has detailed invoices or other evidence of the work, and a formal assessment is likely to be expensive or time-consuming. It is particularly instructive where the court can evaluate the costs for the proceedings it directly handled, but another part of the claimed costs relates to a separate trial or first instance hearing. [28]-[36]
It also speaks to cases in which the claimed legal costs appear high in relation to the length, complexity or factual focus of the proceedings. Here, the Court accepted that the appeal required detailed work, but considered the appeal’s limited issues and one-day hearing alongside the billed hours. It then reduced the solicitor component substantially. [42]-[45]
The service discussion is relevant where a party cannot be personally served despite documented attempts and substituted methods are used. The judgment’s conclusion depended on the evidence about unsuccessful service attempts, the contact details available, court orders authorising alternative service, and the opportunity provided to seek variation of the timetable. [12]-[19] It should not be read as treating text-message service as automatically sufficient in every case.
Finally, the decision is relevant where an applicant has delayed seeking a gross sum order. Delay did not defeat TEG Live’s application for appeal costs, but the Court considered it in fixing motion costs and the interest start date. [27], [33], [49], [52]-[54]
The judgment was delivered on 24 March 2026, and the supplied judgment contains no examples of later courts treating or applying Filby v TEG Live Pty Ltd (No 2). No later treatment can therefore be identified from this source.
Within the judgment itself, Stern JA relies on earlier authorities rather than claiming a new rule. For gross sum orders, the judgment refers to Hamod, Harrison, Gabrielle, Rahman, Tim Barr and Beach Petroleum. [28]-[30] For the general approach to first instance costs, it applies Wormald and Manariti Plumbing. [34] For interest, it refers to Cessnock City Council (Costs) and Hutley. [48] These relationships describe how this judgment uses the cited authorities, not how later courts have treated this judgment.
The judgment also follows the approach in A.C.N. 627 087 030 Pty Ltd v Poche (No 2) of not undertaking the task of calculating interest on costs to date. [50] It uses Salmon v Albarran (No 2) by analogy when considering proportionality. [43] The supplied text does not establish whether any of these authorities later considered Filby (No 2).
The judgment leaves the amount of any first instance gross sum costs order unresolved. It says TEG Live may make a separate application concerning those costs and that the evidence already filed may be usable, but it expresses no conclusion on the amount or outcome of any such application. [4], [55]
The decision does not set a general formula for estimating gross sum costs or prescribe a standard discount. It notes that discounts are often between 10 and 30 per cent in the cited authority, but expressly cautions that this is not a default position and that each case depends on its facts. [38] The 58 per cent figure in this case reflects the assessment of these particular invoices and proceedings, not a general benchmark. [45]
The judgment also does not establish a fixed deadline for gross sum costs applications. It considered six months reasonable on these facts, allowing for the Christmas vacation period, and relied on practical considerations discussed in Tzaneros. [27] The effect of a different explanation for delay, or a different length of proceedings, remains case-specific.
Finally, although the Court inferred that TEG Live could claim input tax credits and excluded GST from the allowed appeal costs, it noted there was no direct evidence on the point. [46] The treatment of GST in another case would depend on the evidence and applicable circumstances.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Filby v TEG Live Pty Ltd (No 2) [2026] NSWCA 36
Hearing dates: On the papers
Date of orders: 24 March 2026
Decision date: 24 March 2026
Before: Stern JA
Decision: (1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the appellant is to pay:
(a) the respondent’s costs in respect of the Court of Appeal proceedings (2023/124961) in the amount of $84,500; and
(b) the respondent’s costs in respect of this motion in the amount of $5,000.
(2) Pursuant to s 101(5) of the Civil Procedure Act 2005 (NSW), interest on the costs in (1)(a) above is payable at the prescribed rate as from 25 March 2025.
(3) It is noted that interest on the costs in (1)(b) above is payable as provided in accordance with the position provided s 101(4) of the Civil Procedure Act 2005 (NSW).
Catchwords: COSTS — gross sum costs order — where sufficient information before the Court to enable the assessment of a gross sum costs order in respect of costs of appellate proceedings — no issue of principle — gross sum costs order made in respect of costs of appellate proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101
Legal Profession Uniform Law Application Act 2014 (NSW), s 70
Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Cases Cited: 123 259 932 Pty Ltd v Cessnock City Council (Costs) [2023] NSWCA 99
A.C.N. 627 087 030 Pty Ltd v Poche (No 2) [2026] NSWCA 29
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Chappell v Coyle [1985] 2 NSWLR 73
Filby v TEG Live Pty Limited ACN 150 055 100 [2024] HCASL 184
Filby v TEG Live Pty Ltd [2023] NSWCA 320
Gabrielle v Abood (No 4) [2023] NSWCA 100
Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Hutley v Cosco (No 2) [2021] NSWCA 335
Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185
Rahman v Rahman (No 2) [2025] NSWCA 266
Salmon v Albarran (No 2) [2025] NSWCA 115
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431
WLD Practice Holdings Pty Limited v Sara Stockham [2020] NSWSC 1354
Wormald v Maradaca Pty Ltd [2021] NSWCA 307
Category: Costs
Parties: Mark Filby (Appellant / Respondent on Motion)
TEG Live Pty Ltd (Respondent / Applicant on Motion)
Representation: Counsel:
S Steinhoff (Respondent / Applicant on Motion)
Solicitors:
Corrs Chambers Westgarth (Respondent / Applicant on Motion)
File Number(s): 2023/124961
Publication restriction: Nil.
On 19 December 2023, this Court dismissed an appeal brought by Mr Filby against the dismissal by Slattery J of his claim that the respondent, TEG Live Pty Ltd, breached obligations of confidence owed to him and used his confidential information: Filby v TEG Live Pty Ltd [2023] NSWCA 320. This Court also ordered that Mr Filby pay TEG Live’s costs of the appeal. Mr Filby filed an (out of time) application for special leave to the High Court on 28 March 2024. This was refused with costs on 8 August 2024: Filby v TEG Live Pty Limited ACN 150 055 100 [2024] HCASL 184.
On 26 May 2023, Slattery J made orders directing that Mr Filby pay TEG Live’s costs of the proceedings at first instance, which were heard between 12 and 19 September 2022, on the ordinary basis up to and including 20 November 2020 and on an indemnity basis from 21 November 2020.
By notice of motion filed 25 September 2025 (motion), TEG Live seeks an order that Mr Filby pay its costs of both the first instance and appeal proceedings (from 12 October 2020 when Corrs Chambers Westgarth was instructed), and of the costs motion, on a gross sum basis pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in the sum of $658,119.18 for the first instance and appeal proceedings, $107,838.06 by way of interest on those costs and $30,900.52 for the costs motion, totalling $796,857.76. TEG Live seeks that the motion be determined on the papers and relies on an affidavit of Anna Inglis Ross, affirmed 25 September 2025 and exhibit ex AIR-1. TEG Live also relies on written submissions filed on 9 February 2026.
For the reasons set out below, it is not appropriate for this Court to make any orders as regards the first instance proceedings. It follows that in this judgment I do not consider TEG Live’s submissions that are specifically directed to the first instance proceedings. Nothing in this judgment, or my orders, should, however, suggest that TEG Live is not able to make an application for a gross sum costs order in respect of its costs in the first instance proceedings and its costs of this application to the extent that it relates to the first instance proceedings. Whilst it is obviously a matter for TEG Live if and how it makes such application, it could readily be done on the basis of the evidence, relied upon in support of the motion, which addresses the costs at first instance.
I will make a gross sum costs order in respect of the costs of the appeal proceedings in the amount of $84,500 and of the motion in the amount of $5,000 pursuant to s 98(4)(c) of the Civil Procedure Act. Pursuant to s 101(5) of the Civil Procedure Act I will order that interest is payable at the prescribed rate on TEG Live’s costs of the proceedings in this Court as from 25 March 2025.
The evidence discloses that Mr Filby has not responded to the motion by filing evidence or submissions, or indeed by making any contact with Corrs or the Court. In these circumstances, close attention must be given to the evidence explaining what steps have been taken to serve the motion and supporting materials on him.
On 30 September 2025 the Court of Appeal Registrar directed that the motion be heard on the papers and made timetabling orders.
On 9 October 2025 the Registrar directed that Mr Keleher, the solicitor on record for Mr Filby in the appeal proceedings, file a notice of ceasing to act and provide the most recent contact details for Mr Filby held on his file and that TEG Live serve the motion on Mr Filby by 15 October 2025.
On 21 October 2025 TEG Live filed a motion (substituted service motion) seeking an order under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 10.14(3) that the motion, an affidavit in support of the motion affirmed on 25 September 2025 by Ms Ross, the partner at Corrs with conduct of the proceedings at first instance and in this Court, and the exhibit to this affidavit, ex AIR-1, be taken to have been served on Mr Filby by text message to an identified mobile phone number (which I refer to in this judgment as “the phone number”) on 17 October 2025.
That motion was supported by an affidavit of Ms Ross affirmed on 21 October 2025 in which she explained that searches she had caused to be conducted to ascertain Mr Filby’s financial position had not identified any address for him and that service of the motion and supporting documents upon Mr Keleher was rejected on the basis that he no longer held instructions to act for Mr Filby. Ms Ross also said that Mr Keleher sent her an email on 10 October 2025 attaching a sealed copy of a notice of ceasing to act and informing her of Mr Filby’s last known address, email address and the phone number.
On 17 October 2025 George Robertson, a senior associate at Corrs, sent a text message of service to the phone number, providing a link to the notice of motion, Ms Ross’ first affidavit, ex AIR-1 and the most recent Court orders, and confirming that the matter was next listed on 22 October 2025. Mr Filby did not contact either Corrs or the Court in response to this message.
Attempts to serve Mr Filby at the address, email address and phone number provided by Mr Keleher were all unsuccessful, as explained in an affidavit of James Moore, process server, sworn on 20 October 2025. No-one was at the address or at neighbouring properties. A reply email indicated that delivery of the email to the email address had failed. When Mr Moore rang the phone number the person who answered identified himself as Mr Filby, but when Mr Moore said that he was attempting to serve notice of motion documents on him, Mr Filby said words to the effect of, “I don’t want anything to do with you” and terminated the call. Mr Moore then attempted again to call the phone number, but the call was not connected. Mr Moore said that he suspects, based on his experience, that Mr Filby had blocked his telephone number.
In substance, TEG Live relies on four matters in support of the motion.
First, it contends that Mr Filby’s conduct of the proceedings, and in particular the extent to which this led to costs being incurred by TEG Live, is such that it would be just and fair to make a gross sum costs order. As regards the appeal proceedings, TEG Live relies upon some delay in service of the appeal books and written submissions, information covered by suppression orders being included in Mr Filby’s written submissions, the need to seek non-publication orders (by consent) and conduct of Mr Filby which Corrs says led to it having to seek leave to file a notice of contention out of time.
Second, TEG Live contends that the costs it incurred in the proceedings as a whole (which it says are $749,839.94 in total) are disproportionate to the issues litigated, being whether TEG Live breached an obligation of confidence, and that this resulted from the way in which Mr Filby conducted the proceedings.
Third, TEG Live says that its evidence enables the Court to draw an inference that Mr Filby would not be able to meet a liability of the order likely to result from an assessment of costs, such that the costs of the assessment process would lead to further under-recovery. TEG Live relies upon evidence indicating that Mr Filby does not own any real estate in Australia or securities in any Australian company and is not currently a director of any Australian company (his last directorship as recorded in an ASIC data extract in ex AIR-1 was in 2014). Further, in January 2021 Mr Filby said in an affidavit that he was then on unemployment benefits and was unable to cover the cost of an expert report he wished to rely upon. Mr Filby did not pay the costs order at first instance.
Fourth, TEG Live contends that the evidence it has put before the Court, in particular Ms Ross’ evidence as to her litigation experience, the basis upon which she sought to use the resources she did and her opinion that the costs incurred were reasonable and commensurate, should give the Court sufficient confidence to determine that the order sought is reasonable. TEG Live concedes that the order sought is a higher amount than it would be likely to recover on an assessment, assuming that it would recover between 60-80% of its actual costs and disbursements. TEG Live submits, however, that the order sought is reasonable given that it has applied a 10% discount to Corrs’ legal costs subject to the indemnity costs order, a 5% discount to counsel’s fees and a 30% discount to its legal costs up to the date of the indemnity costs order, for the appeal proceedings and on this application, noting that its actual costs, including disbursements, on this application are $44,143.60 inclusive of GST and $40,130.54 exclusive of GST. TEG Live also seeks a gross sum costs order for 70% of the interest, at the Court prescribed rates, which it says should be paid on the costs awarded in both the first instance and appeal proceedings, from the date of the respective judgments.
The motion was filed some 21 months after this Court’s judgment was handed down and orders were made, and 13 months after the High Court refused Mr Filby’s application for special leave.
Ms Ross seeks to justify this delay on the basis that the outcome of Mr Filby’s application for special leave was not known until August 2024 and the departure of some lawyers at Corrs who had worked on the matter meant that additional work was required in the preparation of the material relied upon on the motion. Ms Ross says that she briefed Ms Steinhoff, counsel, shortly after she received instructions from TEG Live to prepare the motion.
Ms Steinhoff’s costs disclosure is dated 20 March 2025. That suggests that instructions were not given to prepare the motion until approximately six or seven months after the refusal of Mr Filby’s application for special leave. That timing is consistent with Corrs’ invoices on the motion, which indicate that billable work commenced around 1 April 2025. It also suggests that some six months elapsed between instructions being given and the filing of the motion. Ms Ross explains that significant work was required to prepare the motion, although this further delay of six months appears to me more than could reasonably have been required. I add that Mr Filby’s application for special leave to appeal did not justify delaying the application for a gross sum costs order: see by analogy Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431 at [38] (Ball J). The disadvantages of delay outweigh the benefit of any costs savings to TEG Live if Mr Filby had succeeded both in being granted special leave and on appeal to the High Court. This is an application which should reasonably have been filed within 6 months of the orders of this Court disposing of the appeal (allowing for the intervening Christmas vacation period). As Ball J explains in Tzaneros at [32] and [38] there are practical reasons why an application for a gross sum costs order should be made promptly.
The power to make a gross sum costs order at any time before costs are referred for assessment is found in s 98(4) of the Civil Procedure Act. As has often been stated, s 98 confers a wide discretion on the Court: see eg Rahman v Rahman (No 2) [2025] NSWCA 266 at [61] (Payne, McHugh and Free JJA). A gross sum costs order is particularly appropriate where it is desirable to avoid the expense, delay and aggravation likely to be involved in a costs assessment either because of the length and complexity of the assessment or because the additional costs of formal assessment are unlikely to be recovered: Hamod v State of New South Wales [2011] NSWCA 375 at [817] (Beazley JA, as her Excellency then was, Giles and Whealy JJA agreeing); see also Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [27]-[33] (Giles JA). I am satisfied that that is the case here.
The discretion may be exercised where the court considers that the circumstances warrant its exercise and “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”: Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] (Bell CJ, Kirk and Adamson JJA). A broad-brush approach is appropriate; the court is not required to undertake an assessment of the kind that would be appropriate to taxation or a formal costs assessment: Rahman at [63], Gabrielle v Abood at [6]. The court must, however, be confident that the material before it “enables it to make a sufficiently reliable calculation or estimate of an appropriate costs sum”: Tim Barr Pty Ltd v Narui Gold C**oast Pty Ltd [2011] NSWSC 11 at [21] (Barrett J). Another way of putting this is that the approach must be “logical, fair and reasonable”: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123 (von Doussa J).
The degree of any disproportion between the issues litigated and the costs claimed and the complexity of proceedings in relation to their costs are factors meriting particular consideration in an application for a gross sum costs order: Hamod at [816].
As regards the proceedings in this Court, the invoices in ex AIR-1 all set out a narrative of the work undertaken and the issues were relatively confined. I am satisfied that I am able to make a determination which is logical, fair and reasonable.
I am also satisfied that Mr Filby has been given a reasonable and adequate opportunity to be heard on the motion: Hamod at [815]; Beach Petroleum at 120. That he chose not to engage with Mr Moore or Corrs, or to read documents sent by text message to the phone number and LinkedIn message to his LinkedIn profile, is most likely indicative of Mr Filby having chosen not to be heard on the motion.
In light of the matters set out above, a gross sum costs order for the appeal proceedings in this Court, and for the motion, is warranted here. Mr Filby has avoided any engagement with the motion. The evidence before the Court is far from conclusive but suggests that Mr Filby may well be unable to meet the significant costs liability he faces or the costs of an assessment process. The costs incurred by TEG Live in preparing for this application are significant, as disclosed in Ms Ross’ affidavits, and the costs of an assessment process are likely to be even more significant. Such an assessment will necessarily involve engaging in detailed consideration of steps taken in litigation which, whilst not particularly complex, extended over a protracted period. There is also nothing to suggest that agreement would be reached between TEG Live and Mr Filby as to the amount he is liable to pay in respect of costs.
It is overwhelmingly in the interests of the just, quick and cheap determination of the issue of costs that this Court make a gross sum costs order in respect of the costs of the proceedings in this Court and of the motion.
Out of completeness, I add that, as regards the appeal proceedings I am not persuaded that Mr Filby’s conduct materially contributed to TEG Live’s costs.
Turning to the question of the amount which should be ordered, as Beazley JA observed in Hamod, the court typically applies a discount in assessing costs on a gross sum basis. That discount may be somewhat impressionistic, in order to take into account contingencies that would be relevant on any formal costs assessment: Hamod at [820]; Beach Petroleum at 124. That discount is often between 10% and 30%: WLD Practice Holdings Pty Limited v Sara Stockham [2020] NSWSC 1354 at [11] (Sackar J) but that should not be treated as a default position; each case will turn on its own facts.
According to Ms Ross, TEG Live incurred $144,902.13 in defending the appeal proceedings. The work involved providing advice, reviewing documents, briefing counsel, preparing for hearing, attending the hearing, advising on the judgment and advising TEG Live regarding its options for cost recovery. That figure is in fact somewhat lower than the sum of counsel’s fees, Corrs’ fees and disbursements as reflected in the documents in ex AIR-1. I have considered what sum should be ordered by reference to the evidence rather than using the figure of $144,902.13 as a starting point.
Ms Gleeson SC’s fees for the appeal proceedings were $26,455 (inclusive of GST). Her rate (as set out in the evidence) is eminently reasonable for counsel of her experience and standing. Exclusive of GST those fees were $24,050. I consider that it is reasonable to allow approximately 95% of that figure: $22,850.
Ms Ross says that 70% of Corrs’ fees of the proceedings in this Court is $88,652.35 exclusive of GST. 100% of those fees would thus be $126,646.21 (and that figure is supported by the fee notes in ex AIR-1).
(4) Unless the court orders otherwise, interest is payable on an amount payable under an order for the payment of costs.
(5) Interest on an amount payable under an order for the payment of costs is to be calculated, at the prescribed rate or at any other rate that the court orders, as from the date the order was made or any other date that the court orders.
In 123 259 932 Pty Ltd v Cessnock City Council (Costs) [2023] NSWCA 99 at [31] Brereton JA, Mitchelmore JA agreeing, described ss 101(4) and (5) as “a prima facie compromise between the date of the certificate of assessment, and the date when the costs were incurred”. Absent an order, interest will be payable from the date on which a costs order was made. Where there is an assessment of costs, the certificate of the costs assessor will include any interest on costs payable under s 101: Legal Profession Uniform Law Application Act 2014 (NSW), s 70(1)(c)(ii). The payment of interest on costs has been described as having a “compensatory effect”: Hutley v Cosco (No 2) [2021] NSWCA 335 at [31] (Basten JA).
Having regard to the delay in making the application for a gross sum costs order (discussed above), under s 101(5) of the Civil Procedure Act I will order that interest on costs is payable from 25 March 2025, that is, from six months prior to the making of this application. This reflects my conclusion that this application should reasonably have been brought within six months of the orders of this Court, in which case interest would only have been incurred on costs for a period of six months prior to the making of the application. Whilst it may be that Mr Filby (who on the evidence did not respond to Ms Ross’ offer on costs sent in May 2024) would not have made payment of any amount assessed by way of gross sum costs order in respect of the appellate proceedings even at that date, in which case, ordinarily, he would have been liable to pay interest at the prescribed rate under s 101 of the Civil Procedure Act in any event, no assumption should be made that this would have been the case at a time when the proceedings in this Court (in which Mr Filby was represented by senior and junior counsel which he must in some way have funded) were relatively recent and Mr Filby had an outstanding application for special leave and likely also had legal representation for that purpose.
Consistent with the approach taken by Ward P in A.C.N. 627 087 030 Pty Ltd v Poche (No 2) [2026] NSWCA 29, I propose not to undertake the task of calculating interest on costs to date.
The costs of a motion seeking a gross sum costs order may be assessed on a gross sum basis: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [46]. As to the costs of the motion here, as I have already observed, these are $40,130.54 exclusive of GST (calculated on the basis that Ms Ross says that 70% of the costs inclusive of GST is $30,900.52). As to these costs, appropriately, junior counsel was instructed at a reasonable rate. Corrs’ invoices indicate that the work carried out primarily related to decision-making in relation to costs, preparing and drafting Ms Ross’ first affidavit and compiling ex AIR-1.
TEG Live is entitled to its costs of the motion insofar as they relate to the proceedings in this Court. It was a reasonable application to make and, as regards the costs of those proceedings, it has succeeded. It must be said, however, that the delay in bringing this application, and the extended period over which the preparatory work was undertaken, is likely significantly to have increased the costs involved. In this regard, Ms Ross explains that “[d]ue to the recent departure of [various staff members who had worked on the proceedings, that Mr] Robertson, the lawyer assisting with this Costs Application, has been required to review a significant volume of material”. That evidence supports the conclusion, that I would have drawn in any event, that delay has substantially increased the costs of the motion.
Consistent with the approach set out above, I will not make a gross sum costs order as regards the costs of the motion insofar as they relate to the first instance proceedings. That is a matter for the judge considering any application that is made as regards those costs. Thus, my order relates only to those costs of the motion that relate to the proceedings in this Court.
Whilst it is difficult to be precise as to the extent to which costs were incurred in relation to the motion insofar as it relates to such proceedings, the affidavit evidence is sufficient for this to be done in a broad-brush, but sufficiently reliable, way. Ms Ross’ first affidavit sets out the substantive evidence relied upon on the motion. 37 paragraphs within that affidavit are devoted to the procedural history of the appellate proceedings and the costs incurred therein, whereas approximately 160 paragraphs deal with the procedural history of the first instance proceedings including offers of compromise made in those proceedings and the costs incurred in defending those proceedings (beyond these paragraphs the affidavit broadly goes to issues arising in the motion more generally). That suggests that about one quarter of the work on the motion related to the proceedings in this Court, equating to about $10,000 out of the total costs of $40,130.54. Having regard to the impact of delay on those costs, and to the principles set out above, I will make a gross sum costs order in the sum of $5,000 in respect of TEG Live’s costs of the motion insofar as they relate to the costs in this Court.
It follows that the orders of the Court are:
Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the appellant is to pay:
(a) the respondent’s costs in respect of the Court of Appeal proceedings (2023/124961) in the amount of $84,500; and (b) the respondent’s costs in respect of this motion in the amount of $5,000.
**********
Filby
TEG Live Pty Ltd
(1995) 57 FCR 119
(2002) 54 NSWLR 738
Mr Filby was ordered to pay TEG Live $84,500 for the Court of Appeal proceedings and $5,000 for the motion, with interest as specified; no gross sum order was made for first-instance costs.
In response to a request from the Court, Ms Ross affirmed a further affidavit on 20 November 2025. This included Mr Filby’s address as recorded on the electoral roll (Clare Property), that social media and White Pages searches for Mr Filby were unsuccessful, that a search on the website “domain.com.au” disclosed that the Clare Property was re-leased in October 2025, and that further searches carried out by Wise McGrath process servers (comprising searches of tenancy and other databases, Australian Business Number searches, other online searches and attempts to contact Mr Filby using a number connected with his LinkedIn profile) were all unsuccessful.
In an affidavit affirmed on 4 December 2025 responding to a further request from the Court, Ms Ross set out additional details of the searches conducted to locate a means of contacting Mr Filby and of the responses to attempts to contact him. Ms Ross also detailed an attempt to obtain contact details for Mr Filby through Mr Keleher who responded that, to his knowledge Mr Filby was unemployed, that the contact details he had provided were the most up to date that he had, and that he would not attempt to contact Mr Filby.
On 11 December 2025 the Deputy Registrar made an order dispensing with personal service and ordering pursuant to UCPR, r 10.14 that, instead, service of the notice of motion and that sealed order be effected by sending them to the phone number and to Mr Filby’s LinkedIn profile, with service taken to be effective after 14 days of the later of these two means of service. A difficulty with this order is that it provides for substituted service of the motion and the orders, but not for substituted service of Ms Ross’ first affidavit and ex AIR-1, which are relied upon in support of the motion and which were in fact linked to the text message sent by Mr Robertson to Mr Filby on 17 October 2025.
Following this, as set out in an affidavit of Mr Robertson affirmed on 23 January 2026, the motion, Ms Ross’ first affidavit, ex AIR-1 and the orders of 11 December 2025 were sent to Mr Filby’s LinkedIn profile and by text message to the phone number. Mr Robertson also sent a message to Mr Filby’s LinkedIn profile and to the phone number stating that the motion was listed before the Court on 2 February 2026. Mr Filby did not respond in any way to these messages.
On 2 February 2026 the Registrar made a timetable for submissions and ordered that the motion be heard on the papers and that Mr Filby be notified of those orders in the manner provided in the orders of 11 December 2025. Links to the orders, and TEG Live’s written submissions on the motion, were sent to the phone number on 3 and 9 February 2026, respectively. The viewing history of the links indicates that as at 18 February 2026 Mr Filby had not viewed or downloaded these documents.
In light of the above I am satisfied that personal service is practically impossible and service by text message to the phone number would “in all reasonable probability” bring the documents to Mr Filby’s attention: Chappell v Coyle [1985] 2 NSWLR 73 at 83 (Yeldham J), albeit that he may not in fact take steps to read documents by accessing the links. Whilst it is of course possible that Mr Filby has changed his phone number, there is no evidence that that has happened.
Noting that no orders for deemed or substituted service had been made as regards the evidence relied upon by TEG Live on the motion, on 9 March 2026 I made orders that service of the evidence and submissions relied upon in support of the motion, and of my orders, be effected by sending the documents by text message to the phone number, and that the motion would be determined on the papers, in accordance with the Registrar’s orders of 2 February 2026, unless Mr Filby applied to vary those orders by 4 pm on 20 March 2026. Mr Filby did not apply to vary the orders. Ms Ross confirmed by email of 10 March 2026 that Corrs had complied with my orders.
Delay may tend against the making of a gross sum costs order and may be a discretionary reason for refusing to make such order: Tzaneros at [32]-[34] and, as to the court’s discretion in this regard, Wormald v Maradaca Pty Ltd [2021] NSWCA 307 at [15] (Bathurst CJ, Bell P, and Payne JA). Whilst I would not decline to make the order on account of delay, it is a relevant factor in particular in determining what costs should be ordered for the motion itself.
It is generally not appropriate for this Court to be occupied in considering a claim for a gross sum costs order in respect of proceedings at first instance as well as those in this Court: Wormald at [16]; Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 at [57] (Free JA, McHugh and Ball JJA agreeing). That is obviously a sensible approach particularly where, as here, the lion’s share of the costs sought to be made the subject of the order arise from the first instance proceedings about which this Court has no direct knowledge. Assertions or opinions in affidavits of one party’s solicitor cannot supplant the very real benefit that the judge conducting those proceedings has in making the assessments required on an application for a gross sum costs order. Contrary to the submission of TEG Live, this Court is not in as good a position to determine the motion insofar as it relates to the proceedings at first instance as the Court that determined those proceedings.
I have reviewed Corrs’ invoices included in ex AIR-1, including the individual line items, albeit without the benefit of submissions from a contradictor. Without descending into the detail of individual items (many of which reflect consideration being given to preparation and reviewing emails and large amounts of time spent reviewing material from the proceedings at first instance, carrying out research, and preparing summaries of judgments and matrices or schedules of evidence and submissions), I am satisfied that the costs incurred are disproportionate to the work fairly required for what was a confined, albeit fact focussed, one-day appeal which was prepared and heard promptly. There were five grounds of appeal and two grounds advanced in the notice of contention. The latter overlapped to some extent with the issues raised by the notice of appeal. The appeal proceedings raised, in essence, three issues: specificity; whether the circumstances imported an obligation of confidence; and whether there was misuse of confidential information. None of those issues was unduly complex albeit they required detailed examination of the evidence at first instance and the applicable legal principles. Factually, the issues largely centred upon one meeting which took place on 26 February 2013.
As would be expected, Ms Gleeson (who also appeared at first instance) drafted the submissions on appeal, although these were reviewed by Corrs. The submissions were not lengthy. Whilst confidentiality orders were sought, that was an issue that was dealt with concisely, largely on the basis of written submissions and evidence that had been relied upon in the proceedings at first instance. By way of example of the lack of proportionality, it was not proportionate to the complexity of the appeal for 103.3 hours of the time of a senior associate and 52.7 hours of an associate to be billed on this appeal (as is reflected in Corrs’ tax invoices). In these circumstances, a substantial discount is warranted to ensure that the costs ordered to be paid are proportionate to the complexity and nature of the proceedings: see, by analogy Salmon v Albarran (No 2) [2025] NSWCA 115 at [14]. Applying the necessary broad-brush approach, I will allow an amount of $60,000 in respect of Corrs’ costs of the appeal.
The disbursements on the appeal proceedings come to around $1,840.20 and I will allow $1,650 to reflect risks on assessment.
This gives a total of $84,500 in respect of the appeal proceedings. That is approximately 58% of what Ms Ross says were the total costs incurred. I am satisfied that that sum is proportionate and fair as between the parties. This figure also accommodates the contingencies that would arise in a formal costs assessment process, noting the certainty which a gross sum costs order provides.
This figure does not include GST paid by Corrs. Whilst there is no evidence as to this, I would infer that TEG Live is registered for GST and is thus entitled to an input credit on any GST paid: Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413 at [150]-[153] (Campbell JA, Macfarlan JA and Sackville AJA agreeing).
As I have already indicated, nothing in this judgment precludes TEG Live from seeking a gross sum costs order in respect of the costs of the proceedings at first instance.