Background
Vashti Elizabeth Conway appealed from proceedings concerning Tweed Shire Council’s grant of development consent for a dwelling on land owned by Leeroy Property Investments Pty Ltd. In the alternative, she had sought an easement over part of Leeroy’s land under s 88K of the Conveyancing Act 1919 (NSW).
The Court of Appeal dismissed the appeal on 2 July 2026 and ordered Ms Conway to pay Leeroy’s costs. It allowed Leeroy to seek a gross sum costs order if the parties could not agree on the amount. Leeroy subsequently applied on the papers, seeking $73,855.49, supported by a costs consultant’s report and its solicitor’s affidavit.
The Court’s Holding
The Court ordered Ms Conway to pay Leeroy’s costs in a single gross sum of $73,000 under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), with interest from 10 August 2026 subject to the statutory 28-day period for payment. The amount comprised $62,000 for the appeal and $11,000 for the costs application.
The Court accepted that the evidence provided a reliable basis to fix the appeal costs and noted that Ms Conway did not substantively oppose the rounded $62,000 amount. A gross sum order would avoid the expense, delay and likely contentiousness of formal costs assessment.
It also held that costs of the gross sum application should follow the event. Leeroy had succeeded in obtaining its primary relief, and Ms Conway had not substantively engaged with Leeroy’s earlier $55,000 all-inclusive settlement offer. The Court found Leeroy’s preparation costs, including its use of a costs consultant, fair and reasonable in context.
Key Takeaways
- A court may fix costs as a gross sum where the available material permits a fair and reliable broad-brush assessment.
- The successful party may recover the costs of seeking a gross sum order where costs follow the event and no special circumstances justify departure.
- A party’s failure to engage with a reasonable costs proposal may support an award of application costs.
Why It Matters
The decision illustrates the Court of Appeal’s readiness to use gross sum costs orders to achieve finality and avoid a further contested assessment process. It also confirms that finality can extend to the costs of the gross sum application itself.
For litigants, the case underscores the practical costs risk of declining to negotiate after an appeal costs order, particularly where the successful party has evidence supporting a fixed amount.