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“[61] A gross sum costs order can be made any time before costs are referred for assessment. Section 98 confers a wide discretion on the Court. The principles were stated by Beazley JA (as her Excellency then was) in Hamod at [813]-[820], see also Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] per Bell CJ, Kirk JA and Adamson JA.

[62] In Hamod, Beazley JA at [813] identified some of the factors which merit particular consideration, including the relative responsibility of the parties for the costs incurred, 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.

[63] The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123; [1995] FCA 350; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[29].

[64] A ‘broad brush’ approach is appropriate when a gross sum costs order is made. To require the same or a similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673 per O’Loughlin J; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].”

5. Although the power is discretionary, because a gross sum order is a special costs order, there must be a good reason to make it.

CommSec’s submissions

6. CommSec submits that a gross sum order is warranted for three reasons.

7. First, it says a costs assessment is likely to be protracted and expensive. This submission is based on the history of Mr Prakash’s conduct. That conduct includes commencing four separate proceedings in three jurisdictions in respect of the same claim, filing three Notices of Motion against CommSec in these proceedings, filing at least 22 affidavits, and engaging in voluminous correspondence including 69 emails in a two-week period. As I found at J [88], that correspondence was largely rude and consisted of criminal allegations against CommSec and its solicitors.

8. Secondly, CommSec contends that Mr Prakash’s conduct unnecessarily contributed to the costs of the proceedings. This submission follows from the first on the basis that Mr Prakash commenced these proceedings notwithstanding that two identical claims were on foot in the Supreme Court of Queensland, he did not properly frame a claim against CommSec despite being given many opportunities to do so, and the volume of affidavits and unreasonable correspondence put CommSec to the expense of dealing with them.

9. Thirdly, it submits that there is reason to believe that Mr Prakash may be unable to satisfy a costs order. This concern is based on Mr Prakash’s failure to pay all or any part of the $91,051.25 loss that CommSec suffered when it closed his account on 15 May 2025: J [70].

Mr Prakash’s submissions

10. Mr Prakash opposes the making of a gross sum costs order for several reasons. His “preliminary objection” is that the Court does not have jurisdiction to make such an order because it is functus officio. This is the same contention which I rejected in dismissing his claim, and in dismissing his subsequent motion to set aside those orders: Prakash v Commonwealth Securities Ltd (No 2) [2026] NSWSC 455. I have already explained why this submission is unfounded. I reject it.

11. Mr Prakash submits that a gross sum order is unwarranted because such an order is typically reserved for straightforward matters, and this matter is not straightforward because it involves a “perfected debt” of $5,307,031.65 and “complex constitutional issues”.

12. He also contends that CommSec has failed to provide a “fair, logical or reasonable basis for the sum claimed”, and there is inadequate material on which to make such an order. This position is curious given that Mr Prakash’s submissions were filed four days before CommSec filed its submissions and evidence in support of the application. I am not certain how Mr Prakash knew what quantum was being claimed or what material was to be provided in support of the application. I nevertheless take it into account. Relatedly, Mr Prakash submits that the CommSec has not filed any affidavits by “authorized signatories or costs experts” to justify the quantum claimed. At the time he filed those submissions, that was true. But Ms Zahra has now sworn such an affidavit for CommSec within the time allowed by the orders made on 29 April 2026.

Consideration

13. A gross sum costs order is warranted in these proceedings.

14. First, I consider that a costs assessment process would be protracted and cause CommSec to incur significant further expense. Mr Prakash’s submissions on this application and throughout the history of this matter make plain that he does not accept the orders of the Court and will employ whatever device he can to continue his pursuit of CommSec in whichever forum he finds himself. These proceedings must be brought to an end.

15. Secondly, there is no question that Mr Prakash’s conduct is disproportionately responsible for the costs incurred. He filed many affidavits which were largely repetitive. He inundated CommSec with a torrent of correspondence which had little to do with the issues in dispute and did nothing to facilitate their just, quick and cheap resolution. Finally, as I found in the principal judgment, these proceedings were an abuse of process, being the fourth iteration of a claim pursued against CommSec.

16. Thirdly, I do not agree with Mr Prakash that the matter is too complex to warrant a gross sum costs order. Although he submits that the matter involves a “perfected” debt of $5.3 million and complex constitutional issues, in fact it involves neither.

17. Fourthly, I consider that the evidence provided by CommSec on this application is sufficient to enable the Court to determine an appropriate sum between the parties on a broad-brush approach. Ms Zahra sets out the number of hours billed by each employee of her firm at each stage of the proceedings, what work those stages encompassed, and the corresponding costs charged, as well as those of Counsel.

Quantum of costs

18. Ms Zahra’s affidavit deal with costs in three stages:

19. professional costs billed from the service of the Statement of Claim until the first directions hearings, being 14 November 2025 until and including 15 December 2025;

20. professional costs billed from after the directions hearing until the hearing of the motions, being 16 December 2025 until and including 23 April 2026; and

21. disbursements for the entire proceedings, including Counsel’s fees and other disbursements.

22. In most cases, the costs are disclosed inclusive of GST. A party which is registered for GST and entitled to claim an input credit will not be allowed to recover legal costs inclusive of GST on assessment: Gagner Pty Ltd t/as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691 at 723 [152]–[153] (Campbell JA, Macfarlan JA and Sackville AJA agreeing). Because there is no evidence that CommSec is not registered for GST, I have expressed all costs below exclusive of GST.

23. The professional costs incurred by CommSec’s solicitors from the commencement of the proceedings up to and including the directions hearing was $31,935.91. This included reviewing the Statement of Claim, Mr Prakash’s first Notice of Motion, preparing Ms Zahra’s first affidavit, preparing CommSec’s Notice of Motion, briefing Counsel, and preparation for and appearance at the directions hearing.

24. The professional costs incurred by CommSec’s solicitors from after the directions hearing up to and including the hearing on 23 April 2026 was $68,185.45. This work comprised reviewing 153 emails and 25 affidavits from Mr Prakash, reviewing the Amended Statement of Claim and Mr Prakash’s two further Notices of Motion, preparation of Ms Zahra’s second affidavit, preparation of the 1541-page court book, and preparation for and appearance at the hearing.

25. CommSec incurred disbursements of $23,139.78, including Counsel’s fees, court and transcript costs, and document reproduction.

26. Although CommSec’s solicitors incurred professional costs of $100,121.36, it charged CommSec the reduced sum of $79,364.50. Ms Zahra deposes that in her experience, on an assessment CommSec could recover 70% of those reduced professional costs, and 90% of its disbursements, such that it would recover around $76,400 (excl. GST).

27. Applying a broad-brush approach called for on an application of this kind, CommSec seeks that its costs be paid in the gross sum of $68,181.82 (excl. GST). Allowing for disbursements at 90%, this amount comprises 45% of the total professional costs incurred in the proceedings, and 57% of the professional costs which CommSec in fact incurred.

28. In the circumstances, this is a reasonable, and arguably conservative, approach. Such a sum makes an appropriate discount for the time and expense which CommSec will be spared in forgoing an assessment process. I suspect that Mr Prakash’s liability would be assessed at a considerably higher sum if the matter proceeded to assessment.

Conclusion

26. For those reasons, the Court orders that:

27. The Plaintiff pay the Defendant’s costs of the proceedings in the specified gross sum of $68,181.82.

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Amendments

12 May 2026

Date in [1] corrected.