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On 10 February, Adamson JA dismissed two notices of motion filed by Mr Emmott on 20 November 2025, and ordered MWP to pay the costs of those motions and of MWP's own notice of motion filed on 9 January 2026. The judgment refers to that earlier decision as Michael Wilson & Partners Limited v Emmott [2026] NSWCA 8. The judge also made directions for Mr Emmott to apply for a gross sum costs order (para 1).

A gross sum order fixes costs at a specified amount. It avoids the need for taxation or formal costs assessment, but requires the court to estimate a fair amount on the material available. Mr Emmott sought that approach in each of two proceedings, numbered 2024/416114 and 2024/449432.

MWP opposed any gross sum above nil. Its counsel, Mr Crispin, argued that a payment to Mr Emmott would have to be returned to MWP under a litigation funding deed dated 4 April 2007. The argument was that Mr Thomas Sinclair had rights under the deed, had assigned those rights to MWP, and the deed required Mr Emmott to pay funds received from MWP to Mr Sinclair. On that basis, MWP submitted that an award above nil would be futile (para 4). MWP alternatively challenged the amount sought and submitted that a 15 per cent discount should be applied (para 6).

The Court did not decide the meaning or effect of the deed. It quantified the earlier costs orders at $8,500 in proceeding 2024/416114 and $9,500 in proceeding 2024/449432. It also ordered MWP to pay $500 in each proceeding for the costs of preparing the gross sum application (paras 9-11).

Why the court decided this way

The judge began with the principles summarised in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6]. As set out in this judgment, the discretion under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is not confined to a fixed category of circumstances. It should be used where the court can act fairly and has sufficient confidence in arriving at an appropriate amount from the available material. The judgment also records that courts have typically applied a discount, and are not required to undertake the detailed examination appropriate to taxation or formal assessment (para 2). Adamson JA also referred to Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] as authority cited in the summary of those principles.

The central practical consideration was the purpose of the procedure. A gross sum order seeks to avoid the “expense, delay and aggravation” of taxation. That saving comes at the price of a broad-brush assessment. The limit is that the order must have a logical, fair and reasonable basis (para 3). The task is therefore not a line-by-line audit, but neither is it an unstructured estimate.

The deed argument did not change that assessment. The judge compared the asserted effect of the deed to a party's possible indigence or insolvency: such circumstances were treated as irrelevant to whether a costs order should be made. The judge said that the deed's possible operation on a payment by MWP was likewise irrelevant to the gross sum application, while expressly stating no view about the deed's effect (para 5). The point decided is narrow: the deed was not determined, and the Court did not let the alleged circularity of payment prevent quantification.

The amount was assessed on affidavit evidence from Mr Duggan, Mr Emmott's solicitor. His affidavit explained the hourly rates charged by him and counsel Mr Baird, gave his opinion on their reasonableness, explained the basis of the claim, and attached an itemised invoice. It also addressed the discount used to reach the proposed figure (para 7). Adamson JA accepted Mr Duggan's qualifications to give those opinions and accepted that the discounts applied were fair and reasonable.

The Court also considered the nature of the litigation and the people conducting it. The litigation was described as complex and lengthy, and Mr Duggan and Mr Baird had represented Mr Emmott for a considerable time. The judge accepted it was appropriate for them to conduct the litigation rather than engage others at lower hourly rates. As to briefing counsel for directions hearings before a Registrar, the judgment recognises that counsel may not always be needed, but found it not unreasonable in litigation of this kind to use counsel familiar with the matters. The judge noted it could be a “false economy” not to do so (para 8).

Finally, Adamson JA made a further slight discount to the figures already discounted by Mr Duggan, consistent with the broad-brush nature of the assessment (para 8). The resulting amounts were $8,500 and $9,500. The separate amount sought for the costs of the gross sum application was $1,690 across both proceedings. The Court allowed $500 in each proceeding instead (paras 9-10).

Before and after state of the law

The judgment does not set out a comprehensive history of gross sum costs orders or describe a change in the law. Its account of the governing principles is expressly a summary from Gabrielle v Abood (No 4). It says the power under s 98(4)(c) is discretionary, may be exercised when circumstances warrant, and depends on whether the court can act fairly and confidently assess a suitable figure from the material (para 2).

The judgment also makes clear that gross sum quantification is intended to avoid the cost and delay of formal assessment. In exchange, the court works on a broad-brush basis rather than undertaking the detailed examination associated with taxation. The amount nevertheless needs a logical, fair and reasonable foundation (para 3). Those statements describe the principles Adamson JA applied; the judgment does not purport to replace or comprehensively restate the statutory framework.

The “after” position shown by this decision is an application of those principles to the evidence in these proceedings. It illustrates that affidavit evidence containing rates, an itemised invoice, an explanation of the claim and a proposed discount can provide a basis for quantification where the judge accepts the witness's experience and reasoning (para 7). It also illustrates that the court may consider the complexity of the litigation and the value of continuity when assessing whether the lawyers' work and use of counsel were reasonable (para 8).

The decision's treatment of the funding deed should be read narrowly. The Court held it unnecessary and undesirable to decide the deed's effect for this application, and considered the alleged operation irrelevant to whether to quantify costs (para 5). It does not establish what the deed means, determine any rights under it, or resolve any separate dispute concerning its operation. Nothing in this judgment states that a deed with different terms, or a different procedural question, would be treated identically.

Key passages with plain-English translation

At para 2, the judgment reproduces the principles summarised in Gabrielle v Abood (No 4): the discretion is not confined, but the court must be able to act fairly and have sufficient confidence in the amount. In plain English, a court can use a gross sum where the case and evidence allow a fair estimate, but the existence of a costs order alone does not dictate the figure.

At para 3, Adamson JA explains that the procedure is designed to avoid taxation's “expense, delay and aggravation”. The practical translation is that the parties and court need not reproduce a formal assessment process in detail. The corresponding safeguard is that the chosen figure still needs a logical, fair and reasonable basis.

At para 5, the judge says the deed's effect need not be decided and expresses no view about it. In plain English, the judgment resolves only whether the costs should be quantified in this application. It does not decide who ultimately has rights under the deed or what would happen to a payment after it is made.

At para 8, the judge accepts that using familiar counsel for Registrar directions hearings may be reasonable in proceedings of this kind, even though counsel may not always be needed for such hearings. The point is fact-sensitive: the judge considered the complexity of the litigation and counsel's familiarity, rather than treating the use of counsel as automatically reasonable in every case.

The orders at para 11 state the concrete result. In proceeding 2024/416114, the existing costs order was quantified at $8,500 and the gross sum application costs at $500. In proceeding 2024/449432, the corresponding figures were $9,500 and $500.

What fact patterns trigger this precedent

The decision is most directly relevant to an application to convert an existing costs order into a gross sum where formal assessment would involve additional expense or delay, and where the court has material allowing it to form a sufficiently confident view of an appropriate amount. This case had an affidavit from the solicitor responsible for the relevant work, an explanation of rates, an itemised invoice, an account of the basis of the claim and evidence about discounts (para 7).

It is also relevant where the assessment involves challenges to the type or seniority of legal work claimed. MWP argued that some work could have been done by a paralegal or clerk and that counsel was not required for some Registrar hearings (para 6). The judge considered these points against the litigation's complexity, duration and the lawyers' familiarity with the matters (para 8). The judgment does not establish a general rule that such work or counsel's attendance will always be allowed.

The decision addresses an argument that an award would be futile because a funding arrangement might require the recipient to return the payment. On the facts and submissions described, that argument did not prevent quantification. The Court did not interpret the deed, however, so the decision is not a determination of funding arrangements generally (paras 4-5).

The judgment also concerns two related proceedings and a relatively complex, lengthy litigation history. Its reasons make those circumstances relevant to the assessment of whether the lawyers' approach and use of counsel were reasonable (para 8). A different evidentiary record, different kind of work, or materially different procedural context may require a different assessment. The judgment does not set a tariff or formula for gross sum costs.

How later courts have treated it

The supplied judgment contains no decisions issued after 26 March 2026 and gives no account of later treatment of this decision. It would therefore be unsupported to say whether later courts have followed, distinguished or otherwise treated it.

The authorities it itself mentions are earlier decisions. Gabrielle v Abood (No 4) [2023] NSWCA 100 is cited for a summary of the gross sum principles (para 2). Hamod v New South Wales [2011] NSWCA 375 is identified there as authority cited in support of those principles. Michael Wilson & Partners Limited v Emmott [2026] NSWCA 8 is the earlier decision in the same dispute that made the costs orders and directions leading to this application (para 1). The present judgment applies the gross sum principles to the evidence; it does not describe later judicial treatment.

Still-open questions

The principal issue expressly left unresolved is the effect of the litigation funding deed. Adamson JA stated that the Court expressed no view on it (para 5). This judgment therefore cannot establish how the deed should be interpreted or what consequences it may have outside the question of gross sum quantification.

The reasons are also case-specific about the evidence supporting the figures. They accept Mr Duggan's qualifications and opinions and find his approach logical, fair and reasonable (paras 7-8). They do not provide a general method for calculating rates, deciding which tasks require a solicitor rather than a paralegal, or determining when counsel should attend a Registrar hearing.

The further “slight discount” is not expressed as a percentage or calculated in detail (para 8). That is consistent with the judgment's description of a broad-brush exercise, but means the decision should not be read as prescribing a standard discount. Nor does the judgment provide enough detail to reconstruct every item in the invoice or how each amount contributed to the final totals.

More generally, the decision does not decide how the discretion should apply where the court lacks sufficient confidence in the material, where the parties dispute substantial parts of the invoice, or where a gross sum cannot be reached fairly on the evidence. The principles summarised at para 2 identify fairness and sufficient confidence as relevant constraints, but those alternative factual situations were not decided here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.