Mastronardo v Tripodi (No 2)

(a) All prior costs orders vacated.

(b) The plaintiff is to pay the defendant’s costs of the proceedings, agreed in the sum of $70,000.

(c) The plaintiff is to make payment of the defendant’s costs as per Order (2) above, within 28 days from the date of these Orders and into the following account:

[account details provided]

5. In his written submissions, Mr Tripodi argued that costs should follow the event (see r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)).

6. In support of his application for costs, Mr Tripodi submitted that these proceedings were commenced in May 2023, after virtually identical proceedings had been dismissed for want of prosecution. A previous application in the present matter by Mr Tripodi resulted in an order, on 6 June 2024, striking out the then statement of claim and giving leave to replead, together with an order that the plaintiff pay the defendant’s costs thrown away by reason of the amendment on the ordinary basis and an order that the plaintiff pay the defendant’s costs of the notice of motion on an indemnity basis. Further pre-trial steps, with attendant delays on the part of the plaintiff, caused the defendant to prepare, file and serve five affidavits in the matter, including three bundles of exhibits. On 22 August 2025, Judge Weber heard an amended notice of motion which resulted in an order that the plaintiff pay the defendant’s costs of that motion. The plaintiff provided seventeen arch lever folders of mostly double-sided documents without an index or coherent ordering of the documents. The plaintiff opposed the relief sought in the notice of motion filed on 30 October 2025, which was the notice of motion the subject of the February judgment. The defendant engaged senior counsel to appear on the Notice of Motion, which referred to allegations of incompetence and breach of duty against him (without particularising those allegations).

7. It was submitted in Mr Tripodi’s written submissions that a gross sum costs order could be made under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)**. A gross sum costs order in the amount of $70,000 was sought. An affidavit of Mr James Berg of 2 March 2026 was provided in support of the application for the gross sum costs order. Mr Berg, in his affidavit, provides the “total costs incurred by the defendant in these proceedings, up to the date of the Orders made on 17 February 2026”. Mr Berg also provides the figure for disbursements up to 17 February 2026. He excludes GST. Mr Berg applies a 20% discount on professional fees, acknowledging that party/party costs were a higher percentage of costs than a matter which ran to trial would be. Mr Berg proposed a 10% discount on disbursement “for compromise purposes”. Mr Berg noted that Mr Peter Morris SC had been engaged, without junior counsel.

8. Mr Berg provided an email he had sent to the plaintiff’s solicitor on 24 February 2026 proposing the orders set out above at [4]. As at the date of Mr Berg’s affidavit of 2 March 2026, no response had been received to that email.

9. No submissions on costs have been received by the Court from the plaintiff.

Conclusion

10. The defendant is entitled to an order for costs against the plaintiff. However, I see no reason to disturb the prior costs orders.

11. The principles relating to the question of whether a gross sum costs order should be made are conveniently set out in Colquhoun v District Court of NSW (No 2) [2015] NSWCA 54 at [6] – [7]:

6. The power to make a lump sum costs order “should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”: Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [22]; Hamod v State of New South Wales [2011] NSWCA 375 at [813].

7. The material supplied by the Secretary, which is a bare statement of total costs and disbursements, does not permit the Court to have any confidence that $22,000 (or some other amount) is an appropriate sum. The evidence is completely silent as to (a) the timing and nature of costs incurred, (b) the rates at which lawyers charged, and (c) the amount likely to be recoverable on assessment in the event that that took place. There is substantially less evidentiary material than what was held to be insufficient in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11. In that decision, Barrett J concluded at [56]:

“Because the material on which NGC relies upon this application is insufficient to ground a well-informed exercise of the discretion to make a gross sum costs order, the court will not make such an order; and this is so despite the matters of complexity of costs assessment and impecuniosity of the plaintiffs liable for costs that would otherwise make such an order appropriate.”

12. I decline to make a gross sum costs order. Having regard to the evidence referred to in Colquhoun at [7], the data behind the “total costs incurred” by the plaintiff has not been disclosed, so that I do not have sufficient information confidently to assess the quantum of costs.

13. The following order will issue:

14. Subject to the orders made by Judge Andronos on 6 June 2024 and by Judge Weber on 22 August 2025, the plaintiff shall pay the defendant’s costs of this matter, to be agreed or assessed.

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