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[2026] NSWSC 1205
Supreme Court of NSW
2026-10-02
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ivanovic v Mullungeen Pty Ltd (No 2) [2026] NSWSC 1205
Hearing dates: On the Papers
Date of orders: 2 October 2026
Decision date: 02 October 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: No alteration to Order 3 made in the principal judgment.
Catchwords: COSTS — Party/Party — whether successful party should only be entitled to recover 30% of his costs due to only partially succeeding on one out of three grounds of judicial review — exercise of discretion — application for alternative costs order refused
Cases Cited: Hunter Water Corporation v The Owners of Strata Plan 16460 [2026] NSWCA 184
Insurance Australia Ltd t/as NRMA v Richards (No 2) [2023] NSWSC 1056
Ivanovic v Mullungeen Pty Ltd [2026] NSWSC 1119
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274
The Owners — Strata Plan No 31337 v Balacco (No 2) [2026] NSWCA 84
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256
Category: Costs
Parties: Stefan Ivanovic (Plaintiff)
Mullungeen Pty Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
Appeal Panel Constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)
Representation: Counsel:
M Daley (Plaintiff)
I Griscti (First Defendant)
Solicitors:
Capitol Legal (Plaintiff)
McCabes Lawyers (First Defendant)
The NSW Crown Solicitor (Second & Third Defendants)
File Number(s): 2025/499052
Publication restriction: No
On 16 September 2026, I ordered that a medical assessment certificate that had been issued by the third defendant be remitted to the second defendant for determination according to law (Ivanovic v Mullungeen Pty Ltd [2026] NSWSC 1119). I also ordered that the first defendant pay the plaintiff’s costs of the proceedings but gave the plaintiff and the first defendant leave to make submissions in support of an alternative costs order.
The plaintiff was content with the order I made. The first defendant was not content and has submitted that the plaintiff should only be entitled to recover 30% of his costs of the proceedings. The reason behind the first defendant’s submission is that there were effectively three challenges to the third defendant’s assessment (and certificate), but the plaintiff only succeeded on one of these challenges.
The first defendant pointed out that, at least in the written submissions filed in support of the proceedings, the plaintiff devoted only one page of 24 pages, and only one sentence, in four pages in the reply submissions, to the issue on which he ultimately succeeded.
The defendant highlighted the very wide discretion that was available in respect of costs and referred to this passage from The Owners — Strata Plan No 31337 v Balacc**o (No 2) [2026] NSWCA 84, at [16], in support of its submission:
“16. There is no occasion for the complication and expense in an issue-based costs order, which would require agreement or assessment of both sides’ costs and, further, agreement or assessment as to their allocation between issues. Instead, this Court should make a broad brush proportionate order in favour of Ms Balacco, in accordance with Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [19] and many other cases. Such an approach carries with it the advantages of simplifying and reducing the scope for further disputation concerning the quantification of the successful party’s costs, and recognises that precision in the exercise is illusory: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36].”
The Court went on to award the successful party one third of its costs. I was also referred to Insurance Australia Ltd t/as NRMA v Richards (No 2) [2023] NSWSC 1056, where Schmidt AJ ordered a defendant to pay 50% of the plaintiff’s costs. The order arose from a finding that there had been a mixed outcome in the proceedings and that it would be inappropriate for the defendant “to bear the costs of the construction issue on which the insurer failed”, that being an issue that had been raised for the first time before the Court.
In response, the plaintiff pointed to the usual position, under the rules, that costs should follow the event. The plaintiff submitted that basing a costs order on the proportion of overall submissions was, as noted in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256, “a highly unpersuasive way of arguing concerning a decision on costs”: at [59].
The plaintiff submitted that even though there had only been success on one issue, that issue could have been conceded, in which case there would not have been any need for the hearing at all.
In respect of hearings taking a small amount time, the plaintiff referred to Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274, at [21]:
“21. ... In the case of an appeal which has been completed within a single day, some adjustment to the usual costs order would, in many cases, not be appropriate unless the issue were so clearly separable that the resources devoted to its preparation could readily be identified and allowed for. Often the exercise will require a degree of speculation, or explanation based on a reassessment of the parties’ preparation, which is either not warranted or is inappropriate. While accepting the importance of costs for the parties, the Court should be wary of encouraging satellite litigation with respect to the precise nature of a costs order. ...”
“188. The primary judge gave a separate judgment on the issue of costs: The Owners - Strata Plan No 16460 v Hunter Water Corporation (No 2) [2025] NSWSC 1361 (PJC). HWC had submitted at first instance that the respondents should pay HWC’s costs in respect of the claim under s 22 of the Hunter Water Act, and that it should pay only one third of the remainder of the respondents’ costs, in circumstances where ‘the plaintiffs [lost] one of the causes of action they had pursued’: PJC [4]. The primary judge observed that the respondents’ damages claim effectively had two parts: a claim for physical damage and a claim for loss of value (referred to as the stigma claim): PJC [12]-[13]. The former had succeeded; the latter had failed.
189. The primary judge accepted HWC’s submission concerning the s 22 claim, and apportioned ‘a half day of hearing’ to that issue: PJC [6], [9], [11]. But his Honour rejected HWC’s submission seeking apportionment of the balance of the costs. His Honour considered that it was not appropriate to separate the costs of the physical damage and stigma components of the claim in circumstances where: (unlike the s 22 claim, which was introduced by amendment at the hearing: PJC [7]) the physical damage and stigma components had formed the original basis for the damages sought by the respondents; the whole of the respondents’ claim had been disputed by HWC (that is, as to both nuisance and negligence); and HWC had not disputed the quantum of the physical damages claim but failed to make any pre-hearing offer to settle that claim: PJC [12]-[15]. The respondents having succeeded in the proceedings, costs followed the event: PJC [15].”
I think the primary factors in the costs dispute are that:
the plaintiff succeeded in having the matter remitted to the second defendant;
the first defendant never made a concession on the successful issue;
the hearing was completed within a short time (two and a half hours); and
the issues in the case, while separate were also intertwined by their factual background.
Accordingly, and in the exercise of my discretion, I decline to order any alteration to Order 3 made in the principal judgment.
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Ivanovic
Mullungeen Pty Ltd (No 2)