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[2025] NSWSC 677
General information, not legal advice.
Supreme Court of NSW
2025-06-27
McHugh JA
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Khanna v Bunnings Group Limited (No 2) [2025] NSWSC 677
Hearing dates: On the papers
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Common Law - Administrative Law
Before: McHugh JA
Decision: (1) Order that in respect of the costs payable pursuant to order (2) made on 13 March 2025 the plaintiff pay to the first defendant the sum of $14,614.50 instead of assessed costs.
(2) There otherwise be no order as to costs, to the intent that order (1) above resolve all questions of costs between the plaintiff and the first defendant in this Court.
Catchwords: COSTS – Gross sum costs order – Where costs assessment likely to involve further expense and delay – Where assessment would disadvantage party seeking order because of other party’s inability to discharge costs liability – Whether sufficient evidence for Court to undertake fair and just quantification
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 60, 98
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 6.1, 12.10, 36.16
Cases Cited: Amirbeaggi v EB (No 2) [2023] NSWCA 184
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Khanna v Bunnings Group Limited [2025] NSWSC 199
South Western Sydney Local Health District v Gould (No 2) [2018] NSWCA 160
Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356
Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11
Wang v State of New South Wales (No 3) [2020] NSWCA 148
Wentworth v Wentworth (Court of Appeal (NSW), 21 February 1996, unrep)
Category: Costs
Parties: Sanjeev Khanna (Plaintiff)
Bunnings Group Limited trading as Bunnings (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)
Representation: Counsel:
Plaintiff (self-represented)
R Hudson (First Defendant)
Second Defendant (submitting appearance)
Solicitors:
Plaintiff (self-represented)
Lander & Rogers (First Defendant)
File Number(s): 2024/00241017
Publication restriction: Nil.
On 13 March 2025, I delivered judgment dismissing the plaintiff’s amended summons seeking judicial review of a decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) pursuant to s 69 of the Supreme Court Act 1970 (NSW) and ordering that the “plaintiff pay the costs of the first defendant in this Court”: Khanna v Bunnings Group Limited [2025] NSWSC 199 (PJ or primary judgment).
The first defendant, Bunnings, had indicated that in the event that it was successful it would seek a gross sum costs order. In the primary judgment, I directed a timetable for Bunnings to file and serve any evidence upon which it wished to rely in seeking an order that it be entitled to a specified gross sum instead of assessed costs, and if so in what sum; and for the plaintiff to file any evidence in response. The parties were also directed to exchange submissions.
In accordance with those directions, Bunnings filed submissions and two affidavits sworn by Mr Vince Ripepi, solicitor, in support of its application for a gross sum costs order. The figure that Bunnings nominated as appropriate to be specified was $25,750.50 (being 60% of what Bunnings says are its total costs incurred of $42,917.50). However, I do not understand Bunnings’ application to be limited by the nominated figure. That is to say, I do not understand Bunnings’ position to be that unless it is awarded a gross sum costs order in that amount, the application should be refused and the parties should be sent to assessment. Instead, I understand Bunnings’ application to be for a gross sum costs order, on the footing that if the Court considers it appropriate to make such an order, the amount is to be determined by the Court.
The plaintiff did not file any evidence with respect to the gross sum costs question itself. Instead, in three different sets of submissions (each differently described), the plaintiff (1) asked the Court to defer any decision on costs pending the outcome of an unfiled notice of motion for reconsideration of the primary judgment, which was accompanied by an unfiled affidavit made 26 March 2025; (2) sought to be given an opportunity “to file a full response and supporting affidavit, if required, upon resolution of the pending motion”; and (3) said (apparently in the alternative) that Bunnings’ application should be dismissed. The plaintiff also raised concerns with respect to whether Mr Ripepi’s affidavits should be received (discussed below). In a fourth submission (filed 16 June 2025 and discussed below), the plaintiff stated that he did not intend to file any further evidence on the gross sum costs application.
The primary basis on which the plaintiff opposes Bunnings’ application is that a gross sum costs order would be premature given what he described as his “pending” notice of motion seeking a stay and reconsideration of the primary judgment in these proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16. That notice of motion was to be supported by an affidavit affirmed by the plaintiff on 26 March 2024. However, although copies of both documents were emailed to the Court, neither appears to have been filed.
In the circumstances, I do not consider the unfiled notice of motion to be a reason for deferring consideration of the gross sum costs question. Still less is it a reason to exercise the discretion not to make such an order in favour of Bunnings. No such notice of motion has been filed, despite the plaintiff’s having referred to it for several months. Most recently, in his submissions filed 16 June 2025, the plaintiff stated:
“I am preparing a fresh Notice of Motion under UCPR Rule 36.16 for reconsideration of the judgment dated 13 March 2025. … I will file this application in the Supreme Court shortly, and I respectfully request that any determination regarding the gross sum costs be withheld until that application is resolved.”
The email by which a copy of those submissions was sent to chambers on 16 June 2025 stated: “I will forward the sealed copies of the Motion and Affidavit as soon as they are available, expected by 5:00 PM.” No such documents have been filed. They may never be filed.
As the plaintiff’s notice of motion remains unfiled, his request for deferral of consideration of the gross sum costs question until after resolution of the notice of motion amounts to an informal application for an indefinite adjournment. Acceding to the request would give the plaintiff the unilateral right to defer consideration of Bunnings’ application for a gross sum costs order for as long as it suited the plaintiff — possibly forever.
Bunnings successfully resisted the plaintiff’s application for judicial review. It has regularly invoked the Court’s discretion to make a gross sum costs order. It has done so in accordance with directions made by the Court. Particularly given the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) (CPA) to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”, the exercise of that discretion (whether in favour of Bunnings or against it) should not be frustrated by the plaintiff’s threatened notice of motion.
Separately, the plaintiff raised an argument in written submissions filed on 23 March 2025, which he characterised as “a preliminary procedural objection”. The plaintiff claims that the solicitor for Bunnings, Mr Ripepi, failed to file a valid notice of appearance in contravention of UCPR, r 6.1, and that there was no proper authority for the filing of Mr Ripepi’s affidavits. The plaintiff had raised a similar complaint during the judicial review proceedings before me with respect to the admissibility of an affidavit sworn by Mr Ripepi on 3 December 2024: Tcpt, 3 December 2024, 6.44-7.14. As I explained at that time, Bunnings has filed a formal appearance and the solicitor on the record is a partner of Lander & Rogers. Mr Ripepi deposes that he is an employee of that firm. There is no contravention of r 6.1. Nor has Mr Ripepi filed the affidavit without authority.
The plaintiff nevertheless advances what he asserts are the ongoing irregularities in Bunnings’ legal representation as an independent reason for deferring consideration of the gross sum costs issue (i.e., separately from his unfiled UCPR, r 36.16 notice of motion). The plaintiff referred to the statutory obligations of lawyers to make certain disclosures in relation to legal costs, including the basis of calculation and an estimate of the total. I do not consider that there is a basis establishing any relevant irregularity in Bunnings’ legal representation in the matter before me.
It follows that there is no substantial reason for deferring consideration of the question of a gross sum costs order. The plaintiff’s informal application for an adjournment should be rejected, and Bunnings’ application for a gross sum costs order should be determined on its merits.
However, the plaintiff’s submissions raised a question about the material upon which the Court should proceed.
The plaintiff’s unfiled affidavit made on 26 March 2025 does not provide any evidence relevant to the gross sum costs question itself. Instead, as the plaintiff deposes in the first and last paragraphs of that affidavit at [1] and [10]: “I … make this affidavit in support of my Notice of Motion seeking a stay of judgment and reconsideration of the decision dated 13 March 2025”; and “I make this affidavit in support of my application to set aside the Supreme Court decision and to seek proper redress based on the errors of law and lack of procedural fairness that have materially affected my case.” The matters to which he deposes at [2]-[9] of the affidavit concern the basis of his claim in the Tribunal and his complaints about the primary judgment, including evidence as to his medical and psychological conditions.
As to the filing of any other evidence, the plaintiff did not seek an extension of time within which to file evidence on the gross sum costs question. Instead, the plaintiff indicated that he would seek to file material only on a particular hypothesis that suited him, namely, after resolution of his (unfiled) notice of motion. For the reasons discussed above, that approach was not open to the plaintiff.
Further, in one of two sets of written submissions dated 3 April 2025, which were expressly made in “response to the Defendant’s submissions dated 2 April 2025 seeking a gross sum costs order”, the plaintiff submitted that he “has not been afforded the opportunity to test or respond to the Defendant’s affidavits through a proper hearing”. This submission appeared to be directed to an argument the plaintiff anticipated making in connection with his unfiled notice of motion for reconsideration of the primary judgment, rather than to Bunnings’ evidence in support of a gross sum costs order.
If, instead, the submission was directed to Bunnings’ evidence on the costs issue, the proposition that the plaintiff was given no opportunity to respond to Bunnings’ evidence was simply wrong. The plaintiff had been directed to do so, but he failed to file any evidence on the gross sum costs issue in accordance with the timetable. Instead, the plaintiff directed his energies to attempting to defer consideration of the costs issue. He maintained that approach in his submissions dated 3 April 2025, which, as noted above, responded expressly to Bunnings’ submissions seeking a gross sum costs order. It is not open to a litigant, including a litigant who is self-represented, to arrogate to himself the right to choose when “to file a full response and supporting affidavit”; in particular, to defer doing so until after the “resolution of [a] pending motion”, still less one which has not in fact been filed.
As for testing Bunnings’ evidence, while it is true that the present application is being determined on the papers, to have a full hearing in person with cross-examination would be disproportionate to the amount in issue; indeed, it would largely defeat the purpose of Bunnings’ application.
However, there was a risk that the plaintiff had misunderstood that Bunnings’ application would be determined on its merits in the absence of evidence from the plaintiff. Particularly bearing in mind that the plaintiff is self-represented (but with some reluctance given the overriding purpose in s 56 of the CPA), I considered it appropriate on balance to give him a final opportunity to file evidence despite his failure to do so in accordance with the timetable. It was communicated to the plaintiff on 10 June 2025 that unless he filed other evidence on the question whether a gross sum costs order should be made, or as to the amount of such an order, by 5:00 pm on 16 June 2025, Bunnings’ application would be determined on the material that had been filed.
The plaintiff chose not to take up the further opportunity he was given to file evidence. Instead, he said in his submissions filed 16 June 2025: “I respectfully maintain that the affidavit dated 26 March 2025, and the two written submissions dated 3 April 2025 reflect my opposition to the gross sum cost order, including the question of quantum.” As noted above, the plaintiff continued to seek to have consideration of Bunnings’ application deferred until after his unfiled notice of motion was resolved. For the reasons already given, that submission must be rejected.
In written submissions filed on 23 March 2025, Bunnings submits that there are several reasons why a gross sum costs order should be made.
“[T]he need to avoid satellite litigation about costs which would occur from assessment with the Plaintiff”.
“[T]he desirability given the conduct of the Plaintiff of protection being afforded by r 12.10 UCPR against abuse of the Court’s process”.
“[T]he risk that the Plaintiff will cause significant costs to be incurred in the assessment process out of proportion to the amount that would be ordered on any normal assessment”.
“[T]he admission by the Plaintiff that he does not consider that he can pay any costs order, which indicates that he will even further be unable to pay the costs of a hard-fought cost assessment.” This was a reference to a statement made by the plaintiff in an earlier unfiled affidavit of 18 March 2025 to the effect that he was on a disability pension and had limited financial resources.
The “indication … if the present conduct continues” (apparently meaning if the plaintiff files his notice of motion for reconsideration), that Bunnings may seek an order that should the plaintiff file any further application against it in these proceedings, he must at the same time file a document showing why the court should not summarily dismiss the application as vexatious or an abuse of process: see Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356 and Wang v State of New South Wales (No 3) [2020] NSWCA 148.
“[T]he unfiled motion annexed to the First Affidavit which indicates a willingness to seek to relitigate determined issues in a cost prohibitive and meritless manner.”
I will return to Bunnings’ submissions below.
Apart from his submissions directed to deferring consideration of the gross sum costs question, in two sets of submissions both dated 3 April 2025, the plaintiff submits as follows.
The plaintiff says that such an order would be “unjust” because he is on a disability pension and “cannot afford such financial burdens”. He submits that Bunnings’ reliance on his inability to pay appears punitive. However, I have already made an order that the plaintiff pay Bunnings’ costs. The question is whether it should be on a gross sum basis or subject to assessment. The unlikelihood that Bunnings could recover the costs of assessment is a legitimate reason for seeking a gross sum costs order; it is not punitive.
The plaintiff also disputes Bunnings’ reliance on two documents provided by the plaintiff: an unfiled notice of motion dated 17 March 2025 and an unfiled affidavit dated 18 March 2025. These documents were served on Bunnings on 18 March 2025, and appear to have been earlier versions (in a somewhat different form) of the unfiled notice of motion and affidavit dated 26 March 2025, discussed above. The plaintiff submits that this draft notice of motion is “unfiled and speculative.” I discuss the significance of the unfiled notice of motion (which is part of Bunnings’ sixth point above) below.
The plaintiff also disputes what he says are “[s]tatements suggesting abuse of process [that] are unwarranted and without foundation.” As I do not rely on any conclusion of abuse of process, this consideration may be put to one side.
More significantly, the plaintiff submits that Bunnings’ figure of $25,750.50 is “excessive and not yet scrutinised”. As will be seen, I agree that Bunnings’ claim for that sum is not sufficiently supported on the evidence. But that is not the end of the matter.
In his submissions filed 16 June 2025, the plaintiff submits that “any costs, if awarded, must be assessed in the ordinary course rather than summarily fixed.” Again, this submission overlooks that I have already made an order that the plaintiff pay Bunnings’ costs. The question is whether those costs should be assessed. The plaintiff’s submissions filed 16 June do not advance any additional reason why the costs “must be assessed”.
The discretionary power to award costs as a specified gross sum is conferred by s 98(4)(c) of the CPA. That power is “not confined, and may be exercised whenever the circumstances warrant its exercise”: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21] per Giles JA.
While the discretion conferred by s 98(4)(c) is granted in unconfined terms, it is subject to other provisions in the CPA, including the overriding purpose in s 56, the object of case management in s 57(1)(d) regarding “the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties”, and the obligation in s 60 to “resolv[e] the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”: Hamod v State of New South Wales [2011] NSWCA 375 at [816] per Beazley JA (Giles and Whealy JJA agreeing).
In Hamod, Beazley JA identified several factors that may warrant particular consideration in the exercise of the discretion (at [816]-[817]):
“[T]he relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: *Ritchie’*s Uniform Civil Procedure NSW at [s 98.45].
The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.
The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; *Ritchie’*s Uniform Civil Procedure NSW at [s 98.60]”.
Two of the Hamod factors particularly weigh in favour of making a gross sum costs order in this case.
First, although this was not a lengthy or complex case, it is one in which a costs assessment will likely involve further expense, delay and aggravation to the parties. I accept Bunnings’ submission that, although the plaintiff’s notice of motion for reconsideration remains unfiled, the various drafts of the notice of motion indicate a “willingness to seek to relitigate determined issues in a cost prohibitive … manner.” (It is unnecessary — and, as the plaintiff may yet file his notice of motion, it is not appropriate — for me to determine whether the plaintiff’s proposed notice of motion is “meritless”.)
That conclusion is consistent with the way the plaintiff conducted his judicial review application. During the proceedings, the plaintiff filed several affidavits and submissions raising a large number of complaints about the decision of the Tribunal, many of which were conclusory allegations. As I said in the primary judgment, these often articulated the same basic point in different language: at PJ[20]. In particular, the plaintiff’s affidavit made on 7 December 2024 (which was filed in response to directions for the parties to file affidavits and submissions “addressing the question of the service of the material commencing at page 96 of the Court Book”), sought to reagitate various matters unrelated to the subject of service: see PJ[30]. (The affidavit also contained a number of scandalous conclusory allegations for which no proper basis was shown.) It seems to me that there is a very real prospect that the plaintiff would adopt the same approach to a costs assessment process.
To that extent, I accept the first and the sixth of Bunnings’ submissions numbered above.
Secondly, it is also likely that the additional costs of formal assessment would disadvantage Bunnings because of the plaintiff’s inability to discharge the costs liability in any case. Bunnings submits that a costs assessment will thus result in disproportionate expense. The plaintiff’s response — that he is on a disability pension and cannot afford such financial burdens (i.e., the burden of meeting a costs order against him) — confirms, rather than denies, the validity of Bunnings’ submission.
To that extent, I accept the third and the fourth of Bunnings’ submissions numbered above.
However, I do not accept Bunnings’ second submission, that the desirability of protection being afforded by UCPR, r 12.10 provides a reason for a gross sum costs order. Rule 12.10 provides that if a party is liable to pay the costs of another party as a consequence of the dismissal of proceedings, and the liable party commences further proceedings against the same party based on the same (or substantially the same) cause of action or for the same (or substantially the same) relief, the court may stay those further proceedings until the costs are paid. It is particularly directed to the situation where there has been no determination of the merits. That is not this case. And the suggestion that the plaintiff might commence another proceeding seeking the same relief is speculative.
As to Bunnings’ fifth submission, I consider that the possibility that at some stage Bunnings may seek an order of the type that was made in Teoh and Wang has little if any weight in determining whether I should make a specified gross sum costs order at this stage. As noted above, the plaintiff’s notice of motion for reconsideration remains unfiled.
On the whole, subject to the question of the sufficiency of Bunnings’ evidence of the costs it has incurred to which I will next turn, I consider that there are strong reasons for making a gross sum costs order in this case.
An important and often decisive factor in the making of a gross sum costs order is the quality of the evidence provided by the party seeking the order. The quality of the evidence may be relevant in at least two ways. First, the sufficiency of the evidence may go to whether any gross sum costs order should be made at all. In making such an order the court must be satisfied that it “has sufficient information at its disposal to make an order which is fair and just between the parties”: Wentworth v Wentworth (Court of Appeal (NSW), 21 February 1996, unrep) at 35 per Clarke JA (Priestley JA and Grove AJA, agreeing). As Giles JA said in Schipp at [22], the approach taken to estimate costs “must be logical, fair and reasonable”. However, in determining whether the court has sufficient information to make an order which is fair and just to both parties, it is important to remember that, as was pointed out in Schipp at [22] and [52], the court takes a broad-brush approach to specifying the amount of a gross sum costs order.
That leads to a second, related, way in which the quality of the evidence may be relevant. Where there are deficiencies in the evidence, the quantum of the sum specified may have to be reduced accordingly in order for the court to be satisfied that the order is fair and just between the parties. In effect, the poorer the quality of the evidence of the costs incurred put forward by the applicant for the order, the lower the quantifiable figure of the gross sum that will be considered fair and just to both parties: see Amirbeaggi v EB (No 2) [2023] NSWCA 184 at [6] and [15]. The present is such a case.
Here, Bunnings’ methodology for arriving at the specified gross sum it seeks has two inputs: a total figure for costs actually incurred, and a percentage by which that total figure is to be reduced (in effect, as a proxy for the process of assessment).
As to the percentage, in both affidavits, Mr Ripepi deposes in a conclusory way that the firm that employs him “typically recovers 70-80% of costs on assessment on the ordinary basis.” The percentage Bunnings seeks is 60%, “to avoid any argument as to the fairness of the amount”. Although the evidence in support of that percentage is slight, I consider it fair and reasonable, particularly given that it would apply to the counsel component of the costs (which are often assessed to be recoverable at, or at close to, full value).
A larger problem lies in the evidence on which Bunnings relies for the total figure of costs incurred: some $42,917.50, as explained below.
The party seeking the gross sum costs order will usually provide evidence of the costs in fact incurred and paid: Amirbeaggi at [13]. As outlined by the Court of Appeal in Amirbeaggi at [13] such evidence may include:
“(a) a copy of the costs agreement with the clients, or at least a solicitor’s affidavit stating that the costs agreement is unconditional or, if conditional, identifying the conditions to which it is subject;
(b) copies of the bills and memoranda of fees rendered in the matter; and
(c) an indication as to whether the costs have been paid or not.”
The evidence in this case falls well short of that standard. Mr Ripepi’s first affidavit provided the hourly rates charged by the partner and special counsel at Lander & Rogers on this matter and the hourly rate of the barrister briefed to appear for Bunnings: at [13]-[14]. Beyond that, Mr Ripepi said in his first affidavit that the solicitors’ costs (including disbursements) “incurred” were “approximately $19,000” including GST. There was no explanation of how that figure was composed, nor of the work involved. Mr Ripepi said counsel’s costs “incurred” were “approximately $11,000” including GST (in fact identified as $10,917.50).
In Mr Ripepi’s second affidavit (filed 2 hours after the first), he corrected the figure for solicitors’ costs “incurred” to “approximately $32,000” including GST. Again, there was no explanation of how the $32,000 figure was composed, or of the work involved. Mr Ripepi said that his first affidavit had contained an “error in relation to the legal fees and disbursements incurred by Bunnings associated with responding to the Plaintiff’s Summons to date”, but there was no identification of the nature of the error, nor any explanation of why it had not been detected earlier. Given the magnitude of the increase ($13,000, or 68%), an explanation of the error, and of the work or disbursements which led to that figure, would have been appropriate.
The total figure for solicitor and counsel costs including disbursements said to have been incurred is $42,917.50. Mr Ripepi’s affidavits contained no evidence as to whether those costs have been paid, the terms of the costs agreement(s), the percentage of the solicitor’s costs that may be attributed to disbursements or the nature of those disbursements: see Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11 at [47] per Barrett J and South Western Sydney Local Health District v Gould (No 2) [2018] NSWCA 160 at [10]. In light of the error in the total figure for the “approximate” solicitors’ costs, in the absence of any explanation of the error, and given the absence of any detail explaining the composition of the total figure, it is difficult to have confidence in the total figure as the basis upon which to apply a percentage reduction on account of assessment.
In particular, I am not satisfied that the material before the Court is sufficient to allow the Court to undertake a process of quantification that is fair and just between the parties by way of a formula that takes that figure as one of two inputs, so as to arrive at a total figure (after applying a percentage discount on account of assessment) of $25,750.50. There is no breakdown of the costs, nor any memoranda of fees (or even redacted memoranda: cf. Amirbeaggi at [14]). It might be noted that if disbursements are assumed to be minimal, the $32,000 figure for solicitors’ costs would equate to something like 89 hours’ work at the highest rate ($360 per hour rate, i.e., for partners) to which Mr Ripepi deposes. That would be towards the upper end of the range of what would be reasonable for a one day judicial review application.
In the result, the evidence before the Court does not constitute a sufficient basis to make the order which Bunnings seeks, in the sum of $25,750.50. The question is whether it is appropriate to order costs in some lower gross sum, particularly when the evidentiary shortcomings lie at the feet of the party seeking the order.
It may be that Bunnings would prefer any quantified order — even 40% or 30% or 20% of $42,917.50 — to confronting an assessment process. And, even despite the difficulties with the evidence, by following that path the Court might at some point reach a state of satisfaction that the resulting figure was fair to the plaintiff (at least in the sense that the figure was so low that the plaintiff would inevitably do worse in an assessment of costs, and in that sense could not complain of it). But that would be little different from the Court picking a figure out of the air, in the absence of any evidence, on the basis that Bunnings’ reasonably incurred costs must be at least $X. Even if considered fair, that approach would not be logical or reasonable; it would not be a judicial exercise of the s 98 discretion.
It was said of the somewhat similar situation in Amirbeaggi at [15] that “the appropriate course is to determine the matter on the basis of the material presented by the respondents, whose application it is. The Court should determine the amount of the costs to be awarded, erring on the conservative side to avoid unfairness to the applicant.” The approach adopted was to limit the recoverable fees to those involved in preparing written submissions and appearing at the hearing (at [18]); to allow a fixed amount for counsel on that basis (at [18]); and to allow a reasonable number of hours on account of the solicitor’s time at a particular rate (at [19]). There was no allowance for disbursements. In that case, costs incurred were said to be in excess of $66,000 (being counsel fees of $40,000 and solicitor fees of $26,000). The figure claimed was 90% of the counsel fees and 75% of the solicitor fees, a total of approximately $55,000. The ultimate effect of the approach the Court adopted was to reduce that claim to $33,000: see at [16] and [20].
Adopting a similar broad-brush approach (and, in light of the shortcomings in Bunnings’ evidence, a conservative one), but allowing for the fact that in this case it was necessary for Bunnings to prepare affidavit evidence going to issues of procedural fairness raised by the plaintiff, and allowing for the fact that further submissions and evidence were required after the one-day hearing, I consider it logical, fair and reasonable, and therefore appropriate, to specify the sum of the gross sum costs order as follows.
Mr Ripepi deposes that the relevant hourly rates for the solicitors on the matter at his firm were $360 per hour for a partner and $330 per hour for a special counsel. It is implicit in the affidavit that those rates are inclusive of GST. I consider those rates to be reasonable. It would appear that Mr Ripepi is employed as a special counsel. He deposes that he had the daily conduct of the matter.
On that basis, prior to a percentage reduction on account of assessment, I consider it fair and reasonable to allow 40 hours on account of solicitors’ costs as follows:
(a) 4 days at 8 hours per day at the special counsel rate of $330 per hour (4 x 8 x 330 = $10,560), as Mr Ripepi had the day-to-day carriage of the matter; (b) 1 day at eight hours per day for supervision at the partner rate of $360 per hour (1 x 8 x 360 = $2,880).
I would then reduce those figures ($2,880 + $10,560 = $13,440) to 60% on account of assessment (= $8,064). As noted above, I consider that percentage fair and reasonable.
Mr Ripepi deposes that counsel’s hourly rate is $300 excluding GST. I consider that rate to be reasonable. The figure of $10,917.50 including GST on account of counsel equates to a little over 4 days at 8 hours per day. Taking a conservative approach, and even bearing in mind that there were further written submissions after the hearing, I would consider that not unreasonable but nevertheless towards the upper end of the range for what was a one-day application for judicial review of a decision of the Tribunal arising out of damage done to a lawn by a bottle of weedkiller; cf. Amirbeaggi at [18]. That being so, I consider it fair and reasonable to apply the percentage figure suggested by Bunnings (which I consider conservative with respect to the assessment of counsel’s fees) and again reduce the figure for counsel to 60% on account of assessment (= $6,550.50).
In the absence of specific evidence, I would allow nil on account of disbursements.
The sum of those two figures ($8,064 + $6,550.50) is $14,614.50. This is doubly conservative, in that I have confined the number of hours allowed and then applied substantial discounts as a proxy for the assessment process. But I consider that necessary to ensure that the order is fair and just between the parties, having regard to the shortcomings of Bunnings’ evidence.
The additional orders of the Court are:
Order that in respect of the costs payable pursuant to order (2) made on 13 March 2025 the plaintiff pay to the first defendant the sum of $14,614.50 instead of assessed costs.
There otherwise be no order as to costs, to the intent that order (1) above resolve all questions of costs between the plaintiff and the first defendant in this Court.
**********
Khanna
Bunnings Group Limited
(2002) 54 NSWLR 738
(2005) 215 ALR 788
(2003) 58 IPR 445