Conway v Leeroy Property Investments Pty Ltd (No 2)

1. [1]

   I delivered my primary judgment in these proceedings on 6 June 2025: see Conway v Leeroy Property Investments Pty Ltd [2025] NSWSC 580 (PJ or Primary Judgment). These reasons assume familiarity with, and maintain the same abbreviations and definitions as in the PJ.

2. [2]

   In the PJ, I made the following orders:

3. [3]

   By email dated 18 June 2025, the solicitors for the first defendant (Leeroy) notified my Associate of the costs orders sought by Conway which were different to order 2 made on 6 June 2025. In response, I directed the parties to seek to agree a timetable to determine the varied costs orders sought by Leeroy.

4. [4]

   The parties were thereafter unable to agree on a timetable. Leeroy proposed a timetable. There was no response from Ms Conway. I subsequently set a timetable. This included an extended period of eight weeks from receipt of Leeroy’s material for Ms Conway to respond.

5. [5]

   Leeroy filed its material as directed on 15 August 2025. Two days prior to the eight week deadline for Ms Conway to provide her responsive material, Ms Conway sought a further two weeks until 24 October 2025 for her responsive material. The reason stated by Ms Conway’s solicitor (being her husband Mr Amirbeaggi) for the extension was his other court commitments. Over the objection of Leeroy, I permitted the further two weeks sought. Ms Conway ultimately served her material on 28 October 2025. Leeroy’s responsive material was received by me on 14 November 2025.

6. [6]

   These reasons determine the costs order to be made in lieu of that made on 6 June 2025.

The competing positions

1. [7]

   The costs orders ultimately propounded by Leeroy were:

2. [8]

   The “TBC” in order (1)(b) was quantified at $53,603.62 in an affidavit by Leeroy’s solicitor made 15 August 2025. This was revised down to $49,140.17 in a subsequent affidavit, with Leeroy ultimately submitting it would accept $40,000 in this regard. The total gross sum sought is thus $325,232.35.

3. [9]

   Ms Conway advanced a series of alternative costs orders. Her primary case was that order 2 should be vacated and it be ordered that no order as to costs be made, such that each party bears its costs of the proceedings. Alternatively, it was contended that the costs order made in order 2 on 6 June 2025 be referred to costs assessment. In the further alternative, it was contended that if the Court was minded to make a gross sum costs order, an appropriate gross sum would be between $140,000 and $150,000 and $8,000 and $10,000 for the costs application.

4. [10]

   For the reasons set out below, I have determined that a gross sum costs order should be made in the sum of $295,000. Interest is to run on the costs order.

Evidence relied upon

1. [11]

   In chief, Leeroy relied upon:

2. [12]

   Ms Conway relied on an affidavit of her solicitor, Mr Amirbeaggi, made 27 October 2025 [62 paragraphs]. Mr Amirbeaggi is, as stated above, Ms Conway’s husband.

3. [13]

   In reply, Leeroy relied on a further affidavit of Ms Carlson made 14 November 2025 [34 paragraphs] and exhibit JLC-3 of 177 pages.

4. [14]

   Mr Amirbeaggi’s affidavit appeared to contain an objection to the Court receiving Ms Walker’s report, although no such objection is contained within Ms Conway’s submissions. In turn, Leeroy’s reply submissions raised a number of objections to parts of Mr Amirbeaggi’s affidavit.

5. [15]

   Neither party sought an oral hearing on either the admissibility of the parts objected to or the costs application more generally.

6. [16]

   I do not regard any of the points raised by either party by way of objection as rendering any of the material relied on as being inadmissible. There is no basis in my view for the Court not to receive Ms Walker’s material. The points raised by Leeroy in relation to Mr Amirbeaggi’s affidavit, seem to me to go to the weight that I would attach to the contention made and this is how I have approached the objected to evidence below.

7. [17]

   In considering the opinions expressed by Mr Amirbeaggi in his affidavit I am conscious of the fact that although he is a solicitor of some 20 plus years standing, he is Ms Conway’s husband and thus could not be said to be independent. Unlike Leeroy, who relied on an independent report from Ms Walker, Ms Conway did not seek to rely on any independent report from a costs assessor in response.

Should order 2 stand?

1. [18]

   It is convenient to deal first with Ms Conway’s contention that order 2 made on 6 June 2025 – to the effect that she pay Leeroy’s costs of the proceedings – be vacated and in lieu thereof it be ordered that there be no order as to costs to the intent that each party bear its own costs of the proceedings.

2. [19]

   Ms Conway’s submissions to this effect were based on the contention that the proceedings concerned issues that were or could be characterised as being of public interest such that rule 4.2 of the Land and Environment Court Rules 2007 (NSW) is engaged. The relevant matters were said to be:

3. [20]

   It was further contended that the claims made by Ms Conway were established, arguable, and involved novel legal issues which contributed to the proper understanding of the law. Ms Conway conducted the litigation reasonably and with propriety: see Millers Point Fund Inc v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 (Millers Point).

4. [21]

   Leeroy opposed the vacation of order 2 on a number of grounds:

5. [22]

   I reject Ms Conway’s contentions, essentially for the reasons advanced by Leeroy.

6. [23]

   Rule 4.2(2) can only apply to part of the proceedings – being the challenge to the validity of the development consent. Pritchard J effectively determined as much when her Honour transferred the matter to the Supreme Court: see Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86 at [27], [76(2)]. The equitable claims advanced and those under the Conveyancing Act are outside rule 4.2.

7. [24]

   The proceedings insofar as they challenged the validity of the development consent were pursued in Ms Conway’s private interest as the adjoining landowner seeking to pressure her existing amenity: see, for example, May v Northern Beaches Council (No 3) [2023] NSWLEC 72 at [35] per Robson J.

8. [25]

   The present case is quite different to the decision of Robson J in Millers Point relied on by Ms Conway. The applicant in Millers Point was a community association formed for the purpose, inter alia, of supporting public open spaces.

9. [26]

   The application thus fails at the first stage identified by Preston CJ of LEC in Caroona Coal at [13]-[19] and [38].

10. [27]

    I do not propose to vacate order 2 made on 6 June 2025.

Should a gross sum costs order be made?

1. [28]

   The relevant principles that I should apply were not in dispute. In Ahern v Aon Risk Services Australia (No 2) [2022] NSWCA 39 at [14]-[18] the Court (Meagher, White and Brereton JJA) stated:

Overview of the evidence adduced by Leeroy

1. [29]

   The primary lay evidence relied on by Leeroy on the gross sum application was from Ms Carlson, the solicitor with the day to day conduct of the matter and who has acted for Leeroy since about October 2022, shortly after Leeroy was served with the summons in the LEC proceedings. Ms Carlson’s evidence may relevantly be summarised as follows:

2. [30]

   In a separate affidavit made 15 August 2025, Ms Carlson deposed to the costs incurred by Leeroy in relation to this costs application, and expressed the view that a sum of $53,603.62 would be fair and reasonable based on Ms Walker’s report. This was subsequently revised down to $49,140.17 in a later affidavit from Ms Carlson.

3. [31]

   Ms Walker’s evidence may relevantly be summarised as follows:

4. [32]

   Ms Carlson made a further affidavit in response to aspects of Mr Amirbeaggi’s evidence.

Ms Conway’s evidence

1. [33]

   Ms Conway’s evidence in opposition to the Court making a gross sum costs order was contained in an affidavit made by her solicitor, Mr Amirbeaggi. That evidence may be summarised as follows:

Determination

1. [34]

   Detailed written submissions were provided by both parties, including detailed submissions in reply. I do not propose to summarise those submissions but rather deal with the substantive matters below.

2. [35]

   The first contention raised by Ms Conway is that there is no evidence of the work before the Court and Ms Walker expressed her views without viewing the evidence of the work. It is not entirely clear to me what “evidence of the work” is being referred to. A considerable body of material has been provided to the Court, including, most recently, the invoices issued by Leeroy’s solicitors to Leeroy. I have reviewed all of that material.

3. [36]

   Not all of the material briefed to Ms Walker has been provided to the Court. This is for reasons of costs efficiency. Of more importance is the comprehensive body of material provided to Ms Walker which included the invoices, the material tendered in both the Land and Environment Court and before me and an excel spreadsheet containing billable and non-billable professional costs items dated 19 September 2022 to 8 July 2025 from invoices of Attwood Marshall. Ms Walker, an experienced costs consultant, was of the opinion that the material provided to her, which she reviewed, enabled her to express a view as to the costs likely to be allowed on an assessment.

4. [37]

   Ms Walker was also aware of the material she did not have - referred to as the Additional Material in her report. She expresses the view that review of this material was not necessary or required but is otherwise mindful of this element of uncertainty in applying the discount to professional costs.

5. [38]

   It is not correct to assert that Ms Walker did not review evidence of the work. She did. A considerable body of the material provided to Ms Walker has been provided to the Court, which I have reviewed. This includes the invoices for the work.

6. [39]

   I reject the contention that the Court does not have sufficient material before it to make a gross sum costs order.

7. [40]

   Ms Conway cites as evidence of her concern as to the costs estimate a contention that Ms Walker opined that only $25,802.70 was incurred in a period where Leeroy’s costs were $76,628.11, and to be an unexplained discrepancy requiring assessment. I accept Leeroy’s contention that this is a misreading of Ms Walker’s report. Ms Walker in fact deducted an amount of $25,802.70 from the amounts put to her on the basis that she estimated that these costs were covered by Pritchard J’s order in relation to the transfer application. There is no unexplained discrepancy.

8. [41]

   It is then contended that although Ms Walker identifies the requirements of s 172 of the LPUL, Ms Walker “provides no support for each of the factors identified”. I do not agree. The report examines the relevant factors in detail.

9. [42]

   Ms Conway’s contentions in relation to the CARC Guidelines being exceeded do not warrant the outcome that the costs should be assessed. Ms Walker’s report carefully considers why it is appropriate to allow the rates charged, although in some respects they exceed the CARC Guidelines.

10. [43]

    Further, the contention that the discount applied on an assessment could be greater than the range stated by Ms Walker goes nowhere. Ms Walker acknowledged the uncertainty in relation to this aspect and added 5% to her original estimate of a 25% reduction. Ms Walker’s considered opinion is that a 30% reduction is appropriate.

11. [44]

    Two particular items identified by Ms Conway are Northpoint Advisory’s fees and travel costs. Their quantum is not overly significant. Each was separately identified by Ms Walker. The evidence of Ms Carlson demonstrates, in my view, that Northpoint Advisory’s retention was appropriate. There is also nothing unreasonable in the claimed travel costs. Contrary to Ms Conway’s submission, Ms Walker at [44(f)] of her report expressly says why the travel costs should be allowed.

12. [45]

    It follows that I reject each of the substantive matters raised by Ms Conway as telling against the making of a gross sum costs order.

13. [46]

    I am satisfied that there is sufficient material before the Court to enable a gross sum costs order to be made. The material enables me to determine a gross sum fairly between the parties. The material principally consists of a detailed report of an experienced costs consultant who examined a comprehensive body of material. I deal below with what that gross sum should be.

14. [47]

    I am also satisfied that the circumstances of the present case warrant the exercise of the discretion. The making of the order – in circumstances where I have sufficient confidence in arriving at a figure – will avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process. There seems little doubt that a costs assessment would be heavily contested.

15. [48]

    I turn now to consider what is the appropriate gross sum. I do so using a broad brush.

16. [49]

    The comprehensive report of Ms Walker expresses the opinion that costs will be recoverable totalling $285,232.35. There are a number of components which feed into this total. There are uncertainties in relation to all, or almost all, components, including most importantly:

17. [50]

    The largest component is professional costs and it is to this component that the greatest uncertainties, set out at (a) and (b) above, apply.

18. [51]

    It is also generally accepted that the Court applies a further discount when determining a gross sum.

19. [52]

    Having regard to these matters, I propose to order a gross sum of $255,000 which is a deduction of about 10% from Ms Walker’s figure.

20. [53]

    In relation to the separate costs of the gross sum application, an appropriate figure to order is $40,000. This is a further discount on the figure derived from applying Ms Walker’s discounts to the actual costs incurred – being approximately $49,000.

21. [54]

    Leeroy also seeks an order that interest be paid on these amounts. Nothing was said by Ms Conway against this. Interest should be awarded.

Orders

1. [55]

   The orders of the Court are:

   1. (1)

      Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff pay the first defendant’s costs in the gross sum of $295,000.

   2. (2)

      Pursuant to s 101(4) and (5) of the Civil Procedure Act 2005 (NSW), the plaintiff pay interest on the costs payable to the first defendant pursuant to order 1 above, calculated from the date of these orders at the prescribed rate.