These are being made more frequently these days – particularly where the Court is satisfied that the unsuccessful party has unnecessarily contributed to the costs of the proceedings, and the total costs of litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made.
On Tuesday, Adamson J made such an order in Webster v Super Smart Strategies Pty Ltd (No. 4) [2017] NSWSC 1416.
Her Honour fixed costs in a sum approximating 75% of the total fees rendered by the successful party.
The unsuccessful parties were in bankruptcy and liquidation respectively, and that gave rise to an inference that “it is unlikely that the costs orders, much less the judgment sums ordered… will be paid in full. In these circumstances, it would be unjust to require Finn Foster to spend further money on a costs assessment”: at [12].