R E Nixon Pty Ltd v Nowytarger [2026] QSC 6

[1] On 11 November 2025, I delivered reasons in this matter: see [2025] QSC 300. At my direction, the parties prepared a draft order in accordance with those reasons. I made that order on 16 December 2025. It included the following:

"The Defendant pay the Plaintiff's costs of the application, to be assessed if such costs are not agreed or fixed by the Court in accordance with paragraphs 8, 9 and 10 of these Orders."

[2] The Plaintiff has asked me to fix its costs in accordance with the procedure set out in paragraphs 8, 9 and 10 of the order.

[3] The Plaintiff filed all of its material (submissions and evidence) on time. As had been the case in the application itself, the Defendant was late with his material - without explaining why. He filed submissions only: no evidence.

[4] The parties asked me to make my decision about fixing costs and their quantum on the papers. Having considered the written submissions and the evidence, I found that there was likely to be little gained, and only further costs incurred, by an oral hearing and, accordingly, my decision has been made on the papers.

[5] For the reasons which follow, I have decided to fix costs in the amount claimed by the Plaintiff.

[6] By rule 687(2) of the Uniform Civil Procedure Rules 1999 (Qld), the Court may order one party to pay the other's costs in a fixed amount.

[7] The Plaintiff referred me to authorities which set out the applicable principles (including Amos v Monsour Pty Ltd [2009] QCA 65; [2009] 2 Qd R 303 at [28] and ASIC v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] QSC 9; [2008] 2 Qd R 298 at [32] and [36]). The Defendant accepted that the relevant principles were outlined accurately in the Plaintiff's written submissions. They included the following (paraphrased by me, citations omitted) -

(a) The purpose of making a gross sum order is to save the parties the time, trouble,

delay, expense and aggravation of protracted litigation arising out of taxation.

(b) The specification of the gross sum is not the result of a process of taxation or

assessment of costs.

(c) The power to make a gross sum order should be exercised only when the Court

considers that it can do so fairly between the parties. There is a need for

sufficient evidence to arrive at an appropriate sum.

(d) The gross sum can only be fixed broadly, having regard to the information before

the Court.

(e) Expert evidence, analysing bills of costs and/or an opinion about the likely

outcome of taxation has been utilised by the Court in making a gross sum order.

(f) The Court should be confident, in fixing the amount of the gross fee, that the

approach taken to estimate costs is logical, fair and reasonable.

(g) The power to order a gross sum amount is appropriate even in complex cases.

(h) The Court must be astute to prevent prejudice to the party ordered to pay costs by

over-estimating the costs.

(i) The Court must also be astute not to cause injustice to the successful party by an

arbitrary "fail safe" discount on the cost estimates submitted to the Court.

However, a discount may be applied if appropriate, having regard to the facts of

the case.

(j) The power to order costs may appropriately be exercised where the assessment of

costs would be protracted and expensive; and it appears that the party obliged to

pay the costs would not be able to meet the liability of the order likely to result

from the assessment.

(k) In assessing quantum, the Court may take into account the evidence before it, its

own observations of the proceedings, and a judge's own assessment experience.

[8] The Defendant described himself as impecunious and agreed that he would be unlikely to be able to pay the costs of the Plaintiff's application. Indeed, the Defendant's own solicitor had been hamstrung by the Defendant's lack of funds in his preparation of the application which I heard in the substantive matter. And the Defendant is facing other claims or potential claims which exceed $1.8 million.

[9] The Defendant agreed that the process of fixing costs would be less expensive and involve less delay than a formal assessment of the Plaintiff's costs, which would itself run up further costs. In this regard, although there was agreement, I noted that, in the circumstances of this case, the parties' position (that fixing costs was the less expensive option) was an obvious one, and consistent with the evidence contained in the affidavit of Stephen Dickens, filed on 27 November 2025, in which he outlined information he had received from an experienced costs assessor, and expressed an opinion about the likely length and costs of a formal assessment.

[10] In my view, the Defendant has had ample notice of this application and ample time to put on relevant material, although he has not done so. It cannot be said that my fixing costs would be in any sense unfair.

[11] Supported by evidence, including from its solicitor who is familiar with the relevant costs scales and experienced in their application, the Plaintiff submitted that its costs should be fixed in the amount of $33,693.10. The amount sought was supported by a detailed explanation of the work performed and the calculations of fees and costs in relation thereto. The Plaintiff also put into evidence relevant invoices, which seem to me to be completely in order

[12] As noted above, the Defendant acknowledged that he is unlikely to be able to pay the Plaintiff's costs. And he acknowledged that he has no prospect of repaying the substantial sums he owes to other entities. However, he contended that his impecuniosity was not a sufficient reason for the court to fix costs - but did not explain why that might be so, by reference to authority or otherwise. Nor did he make any other submissions as to why it might be inappropriate to fix costs in this case or why it would be preferable to put the parties to the greater expense of a detailed assessment, especially when the costs claimed by the Plaintiff were prepared by reference to the Court scale.

[13] Bearing in mind: the fact that the Defendant is impecunious; the purpose of a fixed costs' order; that I consider myself able to determine the quantum of costs fairly; and the desirability of bringing this aspect of the litigation to a close as efficiently as possible, I consider it appropriate to make a fixed costs order in this case. I consider the expense and delay of an assessment to be disproportionate to the limited contest between the parties on the issue of quantum which is discussed below. In other words - as will emerge - although the Defendant did not nominate the amount he considered to be reasonable, on the basis of his challenges, the parties could not be more than a few thousand dollars apart. A formal costs assessment process would cost the party entitled to its costs - the Plaintiff - at least $10,000 (see the affidavit of Stephen Dickens).

[14] As to quantum: the Defendant accepted the quantum of the claim for Counsel's fees, although he noted that the details of a claim for $300 had been redacted. He challenged five other aspects of the costs claimed by the Plaintiff's solicitor.

[15] I did not understand the Defendant to be challenging the $300 claimed by Counsel but regardless, in response to the Defendant's submissions, the Plaintiffs wrote to him on 18 December 2025, explaining the basis for the claim of $300 and responding to the other challenges he made in an effort to sort out this issue without my having to determine it.

[16] With the Defendant's consent, that letter was provided to me and I treated it as the Plaintiff's reply submissions.

[17] The Defendant asserted that the care and conduct loading claimed of 25% ($3,357.88) was "excessive in circumstances where the subject of the plaintiff's position and the work relating to the matter was conducted by Counsel".

[18] He challenged four other claims, totalling $6,209.55. Generally, he argued either that the amount claimed was "excessive" or that the solicitor ought not be charging for work done primarily by Counsel. The Defendant did not support his contentions with evidence from an experienced Queensland based solicitor or by reference to the scale.

[19] It seemed to me that the Defendant's solicitor took a relatively limited role in the application. The affidavit he prepared for the application was brief and, as my judgment shows, lacking in detail. He did not attend the hearing in person, or by telephone. He left counsel uninstructed. By way of contrast, it seemed to me that the Plaintiff's solicitor was very active in the application, not only in the preparation of relevant affidavit evidence but also during the hearing. It seemed to me that she was on top of the material and very engaged in the matter.

[20] In my view, the loading for "care and conduct" of 25% was appropriate. The application was a relatively complex one, given the number of deemed admissions under consideration and the state of the Defendant's pleading. Its complexity was compounded by the late changes to the Defendant's position and my need to clarify exactly what the Defendant was seeking, given the errors in his draft order. A loading of 25% fell within the range allowed for this type of matter in accordance with the relevant Practice Direction (22 of 2018) which sets out guidelines for the costs of care and conduct.

[21] With respect to the challenges to the other four amounts claimed, as Martin SJA reinforced in Yafe v Sivyer and Trainor [2025] QSC 53 at [32], referring to Amos v Monsour, rule 687 does not require the Court to engage in some sort of mini assessment. The order is for "an amount of costs", which should be arrived at after consideration of the evidence which is sufficient in the circumstances. The process of arriving at fixed costs is intended to be speedy and inexpensive. The gross sum can only be fixed broadly, having regard to the information before the Court.

[22] I am satisfied that the amount sought by the Plaintiff is supported by a sufficiently detailed explanation of the work performed - further elaborated upon in the Plaintiff's reply. The work and the costs incurred were broadly within the range of work and costs to be expected. I could find no reason to apply a discount to the amount claimed.

[23] Accordingly, I order that the Plaintiff's costs of the Application are fixed in the amount of $33,693.10.

[24] The Plaintiff asked for its costs of this present application, on the standard basis, if not agreed, or alternatively that they be the Plaintiff's costs in the cause.

[25] I note that the Plaintiff attempted to resolve the quantum of costs on 18 December 2025 in the letter to which I referred. That letter noted that, despite challenging the amount claimed by the Plaintiff, the Defendant had not nominated an alternative amount. The Defendant was invited to do so - but he did not. Nor has he nominated an alternative amount in his submissions to me. In those circumstances, in the exercise of my discretion, I order the Defendant to pay the costs of the present application, on the standard basis if not agreed.