The Owners - Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd (No 2) [2025] NSWSC 148 (5 March 2025)

Last Updated: 5 March 2025

Supreme Court New South Wales

Case Name:	The Owners - Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd (No 2)
Medium Neutral Citation:	[2025] NSWSC 148
Hearing Date(s):	On the papers; written submissions 24, 25 February and 3 March 2025
Decision Date:	5 March 2025
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Fix costs thrown away, or refer question of costs to a costs assessor on the basis that costs of the reference will follow the event of whether a party does better than the fixed costs figures proposed
Catchwords:	COSTS – costs assessment – procedure – where plaintiff to pay defendants’ costs thrown away
Cases Cited:	Edelman v Badower [2010] VSC 427 The Owners - Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd [2024] NSWSC 1625 Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079
Category:	Costs
Parties:	The Owners - Strata Plan No 95242 (Plaintiff) Karimbla Properties (No 42) Pty Limited (First Defendant) Karimbla Constructions Services (NSW) Pty Ltd (Second Defendant) Guardian Protection Services (Aust) Pty Ltd (Third Defendant) Plumb Group Pty Limited (Fourth Defendant) Saba Bros. Tiling Pty Ltd (Fifth Defendant)
Representation:	Counsel: F Corsaro SC (Plaintiff) G Sirtes SC (First and Second Defendants) S T Hanscomb (Fourth Defendant) Solicitors: Chambers Russell Lawyers (Plaintiff) Meriton Property Services Pty Ltd (First and Second Defendants) Katerina Mihail Solicitor (Third Defendant) Kydon Segal Lawyers (Fourth Defendant) Meridian Legal (Fifth Defendant)
File Number(s):	2023/128827

JUDGMENT

1. On 12 December 2024, I published a judgment in this matter granting the plaintiff Owners Corporation leave to adduce further expert evidence.^[1]
2. At [45], I said:

“There must also be a consequence as to costs. I propose to order that the Owners Corporation pay the defendants’ costs thrown away by the making of these orders and to invite the defendants within a reasonable time to serve and provide by email to my Associate short submissions and evidence as to the costs actually thrown away to date. I will deal with that evidence as soon as I can with a view to making an order that the Owners Corporation pays those costs forthwith.”

3. I have now received submissions from the defendants as to the amount that they contend should be awarded for their costs thrown away.
4. Costs that are “thrown away” are past costs which would not have been expended but for the event in question: here, the granting of leave to the Owners Corporation to adduce further evidence.^[2]
5. Costs which are “thrown away” must be genuinely wasted and not represent costs that remain relevant to the ongoing litigation.^[3]
6. The first and second defendants, the Meriton parties, claim costs thrown away of $78,525 comprised of:

(a) $8,500 for in-house legal fees;

(b) $39,625 for the engagement of various experts; and

(c) $29,650 for Senior Counsel’s fees and $3,500 for in-house legal fees associated with the leave application itself.

7. The work said to have been done by Meriton’s in-house lawyers is described at a high level of generality. Senior Counsel’s memorandum of fees are in evidence, although redacted, presumably to protect privileged material. Some of Senior Counsel’s fees relate to work done after delivery of my judgment.
8. There is also in evidence invoices from five experts which do not descend into any particularity and evidently constitute all of those experts’ fees to date. It appears to me to be highly unlikely that, in the circumstances I described in detail in the 12 December 2024 judgment, all of the work done by those experts has been “thrown away”. Indeed, it seems likely that much of such work will remain useful when meeting the Owners Corporation’s further evidence.
9. The third, fourth and fifth defendants do not claim any amount for expert fees but claim $6,008.50, $6,072 and $10,153 respectively for solicitors’ costs said to be thrown away.
10. The very high level of evidence that is before me about these matters means I would necessarily have to make a very broad-brush decision to come to a conclusion as to the just amount to require the Owners Corporation to pay as costs thrown away.
11. Further, as Senior Counsel for the Owners Corporation has emphasised, some proportionality must be retained between what has happened and the amount the Owners Corporation should pay.
12. In those circumstances, I propose to give the parties a choice.
13. I will fix costs thrown away at $25,000 for the first and second defendants, and $3,000 for each of the third, fourth and fifth defendants, or refer the question out to a costs assessor on the basis that the costs of the reference will follow the event of whether a party does better at the reference than the figures that I am proposing.
14. I am proposing a “one in all in” regime. That is, either all parties agree to the figures I am proposing, or the question of all parties’ costs will be referred.
15. The parties should confer and let my Associate know, by 5pm on 14 March 2025, which course they prefer.

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^[1] The Owners - Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd [2024] NSWSC 1625.
^[2] See, for example, Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079 at [47] (Davies J).
^[3] See, for example, Edelman v Badower [2010] VSC 427 at [40] (Mukhtar AsJ).