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Category: Costs

Parties: Prestigious Plumbing Pty Ltd (ACN 153 421 615) (Plaintiff)
Secretary, Department of Customer Service (First Defendant)
Giulietta Siciliano (Second Defendant)

Representation: Counsel:
A Sivanathan (Plaintiff)
T Bagley (First and Second Defendants)
Solicitors:
Pigott Stinson (Plaintiff)
Department of Customer Service (NSW), Legal Enforcement (First and Second Defendants)

File Number(s): 2025/491661

Publication restriction: Nil

JUDGMENT

1. PRICE AJA: On 10 July 2026, I delivered judgment in this matter and directed the parties to file written submissions on costs, which have now been received, with the issue of costs to be determined on the papers: Prestigious Plumbing Pty Ltd v Secretary, Department of Customer Service [2026] NSWSC 798. These reasons addressing costs assume familiarity with my earlier judgment and for convenience I will adopt the same abbreviations.

2. The proceedings concerned the validity of the Notice issued by the second defendant to the plaintiff which required the production of various documents and information pursuant to s 127 of the Home Building Act 1989 (NSW) (“the HB Act”). The plaintiff sought a declaration that the Notice was wholly invalid relying on the implied “entitlement disclosure condition” and opposed the possibility of severance of the Notice. While I concluded that an entitlement disclosure condition should be implied into s 127(2) of the HB Act, I found that the Notice was only partially invalid but those invalid parts being paragraphs 2(a), (b) and (c) of Schedule A, could readily be separated from the remaining parts of the Notice. Subject to the declaration that paragraphs 2(a), (b) and (c) of Schedule A of the Notice were invalid, the summons was dismissed.

3. The plaintiff submitted that the defendants should be ordered to pay the plaintiff’s costs and that there is no sufficient basis justifying the departure from the general rule that costs should follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiff contended that the relevant “event” was the declaration that the Notice was partially invalid which turned on my finding that the Notice did not comply with the entitlement disclosure condition implied into s 127(2) of the HB Act.

4. Alternatively, the plaintiff submitted that if the Court is satisfied that there should be a departure from the general rule based on the plaintiff’s partial success then the defendants should be ordered to pay 50% of the plaintiff’s costs.

5. The defendants submitted that the relevant “event” was the dismissal of the summons and in accordance with the general rule the plaintiff should be ordered to pay the defendants’ costs. In the alternative, the defendants argued that having achieved substantial success in mostly defending the validity of the Notice, if the Court was to be satisfied that it would be appropriate to apportion costs between the parties, then the plaintiff should be ordered to pay 75% of the defendants’ costs relying on the approach taken by the Court of Appeal in the recent decision of Hudson v Colliers International (NSW) Pty Ltd (No 2) [2026] NSWCA 127 (“Hudson”).

Consideration

6. The applicable principles are not in dispute. The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 of the UCPR. The “event” has generally been described as referring to the result of the claim and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] (Ward, Emmett and Gleeson JJA) (“Doppstadt”); see also Allianz Australia Insurance Ltd v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334 at [16] (White JA, Meagher and Leeming JJA agreeing).

7. It is well established that this Court has a broad discretion as to costs in particular when there has been a mixed outcome in the proceedings: s 98(1) of the Civil Procedure Act 2005 (NSW); Sims v The Commonwealth (No 2) [2023] NSWCA 30 at [6]-[7] (Bell CJ, Meagher and White JJA), quoting R**yde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6] (Beazley P, Payne JA and Barrett AJA) and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA).

8. As often has been stated, where there has been a mixed outcome in the proceedings and it is appropriate to entertain the process of apportioning costs as between the parties, such an exercise is generally carried out by the Court on a relatively broad brush basis and largely as a matter of impression and evaluation: Doppstadt at [19], citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36] (Beazley, Tobias and McColl JJA) and Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 (Young J).

9. Neither party achieved complete success. While the defendants enjoyed substantial success in the principal issue of upholding the validity of the Notice with the result overall being clearly in their favour, the plaintiff did achieve a measure of success in having parts of the Notice determined to be invalid. In these circumstances, contrary to the primary positions advanced by the parties, I consider that what is appropriate and fair is for the costs to be apportioned: Hudson at [28] (Bell CJ, Ward P and Kirk JA), quoting DSHE Holdings Ltd (Receivers and Managers) (in liq*) v Potts (No* 2) [2022] NSWCA 258 at [8]-[9] (Leeming, Kirk JJA and Basten AJA); see also Pirrottina v Pirrottina [2025] NSWCA 55; (2025) 21 BPR 45,667 at [220] (Gleeson JA, Payne and Adamson JJA agreeing).

Orders

10. Applying the broad brush approach based on matters of impression and evaluation, I make an order that the plaintiff pay 65% of the defendants’ costs on an ordinary basis.

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