Hammon v ASKO Appliances (Aust) No 2 (Costs)

Decision: (1) Confirm the provisional costs order.
(2) Order (2) made on 17 July 2025 is amended to delete the words “subject to the contents of paragraph [42] of this judgment”.

Catchwords: CIVIL LAW – legal costs – provisional costs order made against plaintiffs – where plaintiffs’ application for leave to rely on expert evidence granted despite late service and failure to comply with case management orders – where parties afforded opportunity to make submissions for different costs orders – opportunity taken – surprise to nobody – where provisional order against the general rule that costs follow event – whether it appears that some other order should be made – relevant considerations – costs order confirmed

Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited: Anthea Hammon v ASKO Appliances (Aust) Pty Ltd [2025] NSWSC 766
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Wang v Fan (No 2) [2025] NSWSC 751

Texts Cited: N/A

Category: Procedural rulings

Parties: Anthea Patricia Hammon (First Plaintiff)
Ian Jay (Second Plaintiff)
ASKO APPLIANCES (AUST.) PTY. LTD. (Defendant)

Representation: Counsel:
S Ahmed (Plaintiffs)
D Kelly (Defendant)
Solicitors:
Ligeti Partners Lawyers (Plaintiffs)
Gillis Delaney Lawyers (Defendant)

File Number(s): 2023/00059965

Publication restriction: N/A

JUDGMENT

1. On 17 July 2025, on the plaintiffs’ application, I granted leave to the plaintiffs to rely on the expert report of Marty Denham in the forthcoming hearing of a case in which the plaintiffs seek damages arising from the damage or destruction of their house by a fire alleged to have been caused by a fault in an appliance provided by the defendant: Anthea Hammon v ASKO Appliances (Aust) Pty Ltd [2025] NSWSC 766 (“Hammon v ASKO”). The application was opposed by the defendant. The circumstances and submissions of both parties can be seen in Hammon v A**SKO.

2. I indicated a provisional costs order, namely that the plaintiffs pay the costs of and incidental to the notice of motion but, at [42], afforded the parties the opportunity to make short written submission if they sought to urge a different order for costs. In a surprise to nobody familiar with the background to the matter or the conduct of the motion and the proceedings more generally, the plaintiffs availed themselves of that opportunity.

3. I received brief and helpful written submissions by counsel for both parties and have considered those submissions.

4. The plaintiffs submit that the costs should follow the event in the usual way, noting (correctly) that the “event” in this instance is their successful application for leave which was achieved over the defendant’s objection. That is, the order should be that the defendant pay the costs of and incidental to the notice of motion. In the alternative, the plaintiffs argue the costs should be costs in the cause. As a further alternative, the plaintiffs invited the Court to make an order that “the costs of the motion be the defendant’s costs of the proceedings.”

5. In another unsurprising development, the defendant sought to support the costs order I foreshadowed.

6. I accept the plaintiffs’ submission that costs orders are not calculated to punish a party and that they are “compensatory” in nature: cf Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [37] (“Sze Tu”). The plaintiffs submitted Sze Tu was “cited with approval” by Walton J in Wang v Fan (No 2) [2025] NSWSC 751. Of course, the Court of Appeal judgment in Sze Tu was binding on his Honour and Gleeson JA (with whom Meagher and Barrett JJA agreed) made a number of general observations about costs in a helpful passage at [37]-[42]. I have applied those observations to the facts of this case and to the determination of the question of costs on this particular and discrete component of the litigation.

7. The Court has a broad discretion when it comes to costs: Civil Procedure Act 2005 (NSW), s 98. Generally, the costs will follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 (“UCPR”). As I have said, in this instance, the relevant “event” is the interlocutory success enjoyed by the plaintiffs. However, the Court may depart from that general approach if “it appears to the court that some other order should be made”: UCPR r 42.1 and see Sze Tu at [38]. Many of the observations in Sze Tu related to the situation where a party is successful on some issues and unsuccessful on others in the ultimate cause (in this case, the suit for damages). Neverthelss, I have taken into account and applied the principles and authorities referred to and summarised by Gleeson JA in Sz**e Tu at [40]-[42].

8. Applying those principles to the circumstances pertaining here, I remain of the view that the plaintiffs should bear the costs of and incidental to the notice of motion. The defendant was entitled to resist the application for leave to rely on an expert report served so late in the piece, in contravention of case management orders and after the parties had engaged in mediation. The plaintiffs’ conduct of this aspect of the litigation, with the scantiest of explanation, was dilatory in the extreme. They put neither the Court nor the defendant on notice that they were contemplating getting a new report from a different expert. The new expert was not even briefed for around three months after the date set by Chen J for the service of evidence in reply. The report was not commissioned until 10 June 2025 and was not served until 30 June 2025.

9. The plaintiffs were granted an indulgence by the Court to allow them to run the case as they wished despite their delinquency. They should pay the costs of both parties in gaining that indulgence even in circumstances where they were largely (but not wholly) successful over the objections of the defendant. I say they were not wholly successful because I did not grant leave to rely on part of the report that the defendant correctly argued sought to recast the basis of the claim.

10. In reaching my conclusion that the provisional costs order should be confirmed, I have disregarded the defendant’s submission concerning the outcome of what I assume was its application before Chen J to vacate the hearing date.

11. For those reasons, I confirm the costs order foreshadowed in my earlier judgment. For abundant clarity, the order I make today is:

12. Order (2) made on 17 July 2025 is amended to delete the words “subject to the contents of paragraph [42] of this judgment”.

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