Tutoveanu v Velez (No 3)

Upon dismissing the notice of motion, the Court made directions for the exchange of submissions if the first defendant (Mr Velez) and the second defendant (The Greens NSW) wished to seek their costs of the notice of motion. The Court also directed that the question of costs of the notice of motion would be dealt with on the papers.

The defendants’ solicitors provided their clients’ submissions as to costs in accordance with the Court’s directions on 13 June 2025. Those submissions attached the relevant invoices from both the solicitors and counsel.

On 20 June 2025 (the day on which his cost submissions were due), Mr Tutoveanu emailed my Associate saying: “The plaintiff does not provide submissions on the defendants costs”.

The defendants seek an order for their costs of the notice of motion, assessed in the gross sum of $2,475. That figure compromises solicitor’s costs of $1,650 and counsel’s fees of $825. All amounts in this judgment are GST inclusive.

While the Court ultimately did not require written submissions on the notice of motion from the defendants, the Court accepts that it was appropriate and reasonable for the defendants to retain solicitors and counsel in relation to the notice of motion, to provide preliminary advice and to brief counsel to appear at the first return date of the notice of motion.

The notice of motion was dismissed. There is no reason why the usual order should not apply such that costs should follow the event. Mr Tutoveanu will be ordered to pay the defendants’ costs of the notice of motion.

The Court is also satisfied that this is an appropriate case for costs to be assessed in a gross sum for these reasons:

The proceedings are at an end;

The amount involved is small;

The Court is well able from the invoices provided to assess the reasonableness of the fees charged; and

Mr Tutoveanu has demonstrated a reluctance to accept litigious outcomes that are adverse to his interests. Any further debate (whether by correspondence or assessment) about the amount of costs to which the defendants may be entitled would be completely disproportionate to the amounts involved and will be avoided by the making of a gross sum costs order.

The costs are to be assessed on the ordinary basis. Disbursements such as counsel’s fees, provided they are not unreasonable, are normally allowed in full. That is what should occur in this case, such that the Court allows counsel’s fees in the sum of $825.

The solicitor’s fees are $1,650 on a solicitor-client basis. The Court is satisfied that they are reasonable both as to the rates charged and the work done (including, for example, the entirely sensible measure of only having counsel attend the first return date of the notice of motion). Nevertheless, in my respectful view there should be a 10% reduction in the solicitor-client fees to arrive at party/party costs of $1,485. That reduction reflects both that costs are being assessed on the ordinary basis and as a gross sum. Given the small amount and reasonableness of the fees charged, no further deduction from party/party costs (as is often the case where the costs being assessed are much larger) is required to arrive at a just gross sum assessment.

Accordingly, the Court assesses the defendants’ costs of the notice of motion in the gross sum of $2,310 (comprising solicitor’s fees of $1,485 and counsel’s fees of $825).

The order of the Court is:

The plaintiff is to pay the defendants’ costs of the plaintiff’s notice of motion dated 10 April 2025 assessed in the gross sum of $2,310 (GST inc).