A.C.N. 627 087 030 Pty Ltd v Poche (No 2)

1. [1]

   WARD P: On 24 November 2025, on an application in the referrals list, I dismissed, as an abuse of process, proceedings commenced by A.C.N. 627 087 030 Pty Ltd (to which I will refer as YBL2, conformably with my earlier judgment), the respondent to the present motion, against Mr Poche, the applicant on the present motion (see A.C.N. 627 087 030 Pty Ltd v Poche [2025] NSWCA 252).

2. [2]

   On that occasion, I ordered YBL2 to pay Mr Poche’s costs of the motion for summary dismissal and I ordered that Mr Farshad Amirbeaggi, a solicitor who was formerly the sole director of YBL2 to be jointly and severally liable for those costs (at [64]).

3. [3]

   Perhaps somewhat surprisingly, since Counsel appearing for Mr Poche on the summary dismissal application had indicated that Mr Poche was simply seeking to extricate himself from the morass of litigation that had followed from the costs assessment process in relation to a $98,000 statutory debt owing by YBL2 to Mr Poche (as I had noted at [28] of my earlier judgment), at the time that the costs orders were made, Mr Poche foreshadowed an intention to seek a gross sum costs order and, exercising the liberty granted on that occasion, has now re-entered the litigious fray, so to speak, by filing his notice of motion seeking gross sum costs orders.

4. [4]

   By notice of motion filed on 15 December 2025, Mr Poche seeks orders pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) or alternatively in the Court’s inherent jurisdiction that the costs orders entered on 24 November 2025 be quantified in a gross sum. In support of the application Mr Poche relies on two affidavits of his solicitor, Mr Paul Taylor (Mr Taylor); the first, sworn on 5 December 2025 and the second sworn on 5 February 2026.

5. [5]

   I directed that the motion be heard on the papers. Both Mr Poche and YBL2, through its solicitor, Mr Amirbeaggi, have filed submissions.

6. [6]

   The background to the present application is set out in my earlier judgment and will not here be repeated unless, and then only to the extent that, it is necessary.

7. [7]

   The amount sought as a gross sum for the costs of the summary dismissal application have been quantified at $28,168.95 and costs sought for the present (gross sum costs) application at $4,822.20 (including the filing fee of $766.00), totalling $32,991.15, inclusive of GST (see Mr Taylor’s 5 February 2026 affidavit at [7]-[8] and his email communication sent on 25 February 2026 to the Registrar of the Court of Appeal and copied to Mr Amirbeaggi).

8. [8]

   Mr Taylor has deposed that the amount claimed involves a 40% reduction for the component of costs relating to the gross sum costs application.

9. [9]

   No evidence has been filed by YBL2 or Mr Amirbeaggi in response to the motion. However, Mr Amirbeaggi has filed written submissions in opposition to the application, as noted earlier.

Relevant principles

1. [10]

   The relevant principles to an application for a gross sum costs order are well-known and need only be briefly stated.

2. [11]

   In Hamod v New South Wales [2011] NSWCA 375, Beazley JA (as Her Excellency then was), with whom Giles and Whealy JJA agreed, identified (at [816]) the relevant considerations in exercising the wide discretion conferred by s 98(4)(c) of the Civil Procedure Act as follows:

3. [12]

   Her Honour went on at [817]-[818] to observe that:

4. [13]

   Her Honour also pointed out that the quantum of gross sum costs order must be the consequence of “an informed assessment” ([820]). In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Schipp), to which her Honour referred in the passages extracted above, Giles JA said (at [22]) that the power “should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”.

5. [14]

   Hence, in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (Ahern) ([14]-[17]), this Court identified the two issues to be considered in a gross sum costs application as whether there are proper grounds to do so; and whether the Court is in a position to do so, fairly and with some confidence as to the appropriate sum to be awarded.

6. [15]

   In the present case, Mr Poche submits that the history of these, and related, proceedings make it obvious that the assessment of costs in this matter will be protracted and contested. Mr Poche notes that in Ahern, this Court said (at [15]) that the principal purpose of a specified gross sum costs order is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process. Reference is also made to the observation by her Honour in Hamod at [813] as to the likelihood that an “assessment of costs would be protracted and expensive” and to the exhortation by Basten JA in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3] for the court to seek to avoid “ongoing litigation about ‘non-essential issues’”.

7. [16]

   Mr Poche refers to my observation in my earlier judgment that the proceedings the subject of the summary dismissal application were “simply disproportionate, and satellite litigation in the extreme” (see at [43]).

8. [17]

   Hence, it is submitted that there are proper grounds to quantify a specified gross sum for Mr Poche’s costs of the summary dismissal application (and similarly of the gross sum costs application).

9. [18]

   Mr Poche submits that an appropriate sum can fairly be arrived at in circumstances where: Mr Taylor, an experienced solicitor, has given an itemised account of the time spent on the application (referring to Mr Taylor’s first affidavit at [23], [26] and [30] and Annexure A thereto, as well as Exhibit PT-3) and has given an opinion as to the reasonableness of those costs (referring to his affidavit at [31]-[41]).

10. [19]

    Further, Mr Poche says that the Court is entitled to have regard to its “experience as to the level of costs likely to be allowed” on assessment (referring to Re Palladium Consulting Pty Ltd [2013] NSWSC 92 per Black J at [14]) and to take a “broad brush approach” (referring to Ahern at [18]). Mr Poche submits that, here, the summary dismissal was “short and relatively straightforward”, such that the Court may be in a position to assess for itself “what out of court work was necessary for the case as presented” (quoting Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 at [6] per Beech-Jones J, sitting in the Common Law Division as his Honour then was).

11. [20]

    Mr Poche submits that no significant discount ought to be applied to the sums claimed, beyond the discount identified by Mr Taylor (being 15% for professional fees and 10% for counsel’s fees).

12. [21]

    As to the costs of the gross sum application itself, Mr Poche notes that an offer was made on his behalf on 25 November 2025 to accept costs fixed in the sum of $24,724.60 (incl GST) (see Mr Taylor’s first affidavit at [42] and Ex PT-3). On the assumption that the matter is dealt with on the papers (as it has been), Mr Poche seeks his costs of this gross lump sum application, fixed in the sum of $3,192.00 (incl GST) (see Mr Taylor’s first affidavit at [49]).

13. [22]

    Mr Poche seeks a third-party costs order against Mr Amirbeaggi for the reasons set out in my earlier judgment.

14. [23]

    In opposition to the present application, Mr Amirbeaggi has filed submissions which I apprehend also to be on behalf of YBL2, for which Mr Amirbeaggi is its solicitor. In those submissions, Mr Amirbeaggi sets out his experience as a solicitor (and before then as a full-time law clerk), noting that since his admission on 31 August 2001, his practice as a solicitor has been primarily in the areas of commercial law and litigation. Mr Amirbeaggi says that he has had, and continues to have, a significant level of engagement in relation to costs assessments.

15. [24]

    At the outset, Mr Amirbeaggi points out that the costs order was for the payment of Mr Poche’s costs of the motion, not the costs of “and incidental” to the motion, and that no tax invoice or bill of costs has been served by Mr Poche.

16. [25]

    Mr Amirbeaggi then makes submissions as to the various costs items set out in Annexure A to Mr Taylor’s affidavit, as follows.

17. [26]

    As to the solicitor’s costs claimed, Mr Amirbeaggi submits: first, that any costs that predate the filing of the summary dismissal motion ought not be allowed (referring to Items 1-8, totalling $1,644.50); second, that there are items of duplication or where the work claimed “cannot be located” (referring to items 11 and 31); third, that there are items of administration that ought not be allowed at solicitor’s rates and ought not be allowed at all on a party/party basis (items 13, 23, and 26-29, totalling $2,645.50); and, fourth, that there are items that are excessive (but referring only to one item – item 20, for which he says there should be a reduction of $370.50). Mr Amirbeaggi calculates that there should be a reduction of $5,375.50 (leaving a balance to the claim of $7,507.83 plus GST) in respect of those claimed costs.

18. [27]

    As to the counsel fees claimed, Mr Amirbeaggi submits, first, that the costs of Mr Charles Taylor, ought not be allowed on a party/party basis (submitting that it is not reasonable on a party/party basis to claim the costs of a second barrister on the hearing of the summary dismissal motion, where the solicitor instructing has over 20 years’ experience and is an accredited commercial litigation specialist and Mr Rogers of counsel has some 5 years’ experience at the Bar and 15 years as a solicitor). Second, as to Mr Rogers’ fees, Mr Amirbeaggi submits that costs that pre-date the filing of the summary dismissal motion ought not be allowed (those claimed on 24 September 2025 through to 23 October 2025, totalling a sum of $5,220.00) nor should the “uplift on successful outcome” of 25%, claimed at $3,240.00, be allowed on a party/party basis. Mr Amirbeaggi submits that those sums together ought to reduce the claims in respect of Mr Rogers’ fees by $8,460.00, leaving a balance to the claim for those fees of $7,560.00 plus GST.

19. [28]

    Mr Amirbeaggi submits that in the absence of a tax invoice or evidence of the work (and the “irregularities” he identifies in relation to particular claimed items of costs or fees), the reasonable costs, on a party/party basis of preparing for and hearing of the summary dismissal motion would be in the ranges between $6,800 to $11,500 plus GST. He further submits that a broadbrush discount of 30% ought be applied (again emphasising the lack of a tax invoice or evidence of the work and noting the benefit to Mr Poche of avoiding the costs and time of a costs assessment proceeding and the “likely reduction” on such an assessment). On that basis, Mr Amirbeaggi submits that the total sum for the summary dismissal motion would be in a range of between $4,760.00 and $8,050.00 plus GST.

20. [29]

    It is submitted that even if items 12-15 and counsel’s fees predating the filing of the motion were allowed, there should still be a broadbrush discount of 30% applied, which Mr Amirbeaggi calculates would reduce the sum claimed to $10,547.48 plus GST.

21. [30]

    Thus, Mr Amirbeaggi submits that any gross sum costs order would be in the range between $8,050.00 plus GST and $10,547.48 plus GST. Mr Amirbeaggi says that the applicant has been offered a sum of $10,547.00 plus GST in an attempt to resolve the issue of costs and prevent further escalation of costs, though there is no evidence before me as to this.

22. [31]

    In reply submissions, Mr Poche points out that no evidence was filed in support of the conclusions contained in the submissions filed by Mr Amirbeaggi; and complaint is made that the approach of Mr Amirbeaggi in those submissions has been to conduct a quasi-taxation of the costs claimed on a line by line basis (without any methodology or evidence in support of the reductions) and then to apply an arbitrary further reduction of 30% without any reason as to why a further discount is reasonable or required. Mr Poche submits that it is inconsistent with the objective of a gross sum order that the costs be subjected to the detailed scrutiny normally reserved for formal taxation (by which I assume he means formal costs assessment given that costs are now assessed not taxed).

23. [32]

    As to the objections raised in Mr Amirbeaggi’s submissions, Mr Poche responds as follows. First, in relation to the solicitor costs that have been claimed, Mr Poche points out that no claim has been made for items 1, 2, 3 and 6 in Annexure A (those items being “zeroed out”), with the result that the respondents have included an additional $1,105.00 of objections to costs that have not been claimed. Mr Poche says that, on the respondents’ logic, the true starting position for professional costs is $15,276.66 exclusive of GST (i.e., adding back $1,105.00). Mr Poche points out that if the reduction of $5,375.00 suggested by the respondents were to be adopted, this equates to $9,901.66 for professional costs, which is more than the amount he has claimed by way of a gross lump sum for professional costs; and that once GST is added the amount allowed by the respondents for professional costs is the sum of $10,891.82 (as opposed to what he has claimed, being the sum of $10.263.43 inclusive of GST).

24. [33]

    As to the objections raised in respect of counsel fees, Mr Poche submits, first, that the amount claimed for junior counsel (Mr C Taylor), totalling $1,000, is modest ($250 per hour, which Mr Poche notes, equates almost the hourly mid-range recommended in the CARC guidelines for paralegals, referring to pp 25-28 of Ex PT-3). Mr Poche submits that the use of junior counsel was cost-saving as the work would otherwise have to be attended to by Mr Taylor (at the rate of $650 per hour) and he argues that the use of two relatively junior counsel with modest rates should be considered in the context of the fact that YBL2 retained Senior Counsel to appear at the hearing of the summary dismissal application (noting that under the CARC Guidelines, the daily rate for senior counsel is up to $9000).

25. [34]

    Second, as to Mr Rogers’ fees, Mr Poche argues that work that pre-dates the filing of the summary dismissal notice of motion that was incidental to the costs of that motion is fair and reasonable (such as work in relation to affidavits prior to filing the motion). Further, as to the objection to Mr Rogers’ uplift fee, Mr Poche notes that this uplift fee equates to an hourly rate of $450 per hour (as opposed to the hourly rate of $360.00 per hour). Mr Poche points out that cl 3 of Mr Rogers’ retainer (annexure PT-4 to Mr Taylor’s February 2026 affidavit) entitles Mr Rogers to charge such a fee. Mr Poche notes that the charging of an uplift fee up to 25% is permissible (referring to s 182(2) of the Legal Profession Uniform Law (NSW) (Uniform Law)). Mr Poche accepts that the question is whether it is fair, reasonable and proportionate to allow the costs and submits that, weighing up the factors in s 172(2) of the Uniform Law, the hourly rate with the uplift remains a fair and reasonable hourly rate.

26. [35]

    Mr Poche submits that what Mr Amirbeaggi has suggested (at [19]-[20] of his submissions) is an incorrect application of the broad-brush approach to a gross lump sum order. Mr Poche complains that there is no evidence to support a further reduction of 30%, noting that the 30% reduction is applied after the respondents have undertaken a “rudimentary line-by-line taxation”.

27. [36]

    As to Mr Amirbeaggi’s submission that “there is no tax invoice, evidence of the work”, Mr Poche says that Annexure A outlines and particularises the work undertaken and the costs incurred; that the work is demonstrated in the motion and affidavits, submissions and appearances, of which the Court is aware, and is further supported by the affidavit of Mr Taylor. Mr Poche argues that any tax invoice would record the same work in Annexure A and he points out that the Costs Agreement (pp 11 to 14 of Ex PT-3) creates a liability for him to pay costs.

28. [37]

    Reference is made to the observation made by Brereton J, as his Honour then was, in Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640, when quantifying costs on an indemnity basis, as to the application of a discount in determining a lump sum costs order, namely that:

29. [38]

    Mr Poche argues that, just as any gross sum ordered to be paid must prevent prejudice to the unsuccessful party by overestimating the costs, it must also avoid an injustice to the successful party by applying “an arbitrary fail safe discount” on the estimate submitted to it.

30. [39]

    Mr Poche submits that there has been considerable revision downwards in the gross lump sum costs sought by the application; that the fees were modest to start with; and that YBL2/Mr Amirbeaggi have not filed evidence as to why the methodology and quantum proposed is unreasonable.

31. [40]

    In the circumstances, there being no contrary evidence to challenge the amount claimed by Mr Poche which is “fair, logical and reasonable”, Mr Poche submits the amount should be allowed as claimed.

32. [41]

    Thus, Mr Poche seeks a gross sum order in the sum of $32,991.15 inclusive of GST.

33. [42]

    Mr Poche also seeks interest calculated from the date of the costs order made on 24 November 2025 pursuant to s 101(4) of the Civil Procedure Act, such interest to be calculated at the prescribed rate; and asks that this be calculated by the Registry from the date of the order until the costs order is made. Mr Poche did not claim for interest in the gross sum notice of motion filed on 15 December 2025.

34. [43]

    I have set out earlier in these reasons the principles applicable on a gross sum costs order application.

35. [44]

    I am satisfied that in this case it is appropriate to make such an order. The dispute between the parties (which itself relates to the assessment of costs in respect of the underlying dispute as to the statutory debt owed by YBL2 to Mr Poche) has been protracted and there is every reason to believe that undergoing a formal costs assessment process again will be costly, protracted and productive of further satellite litigation.

36. [45]

    I am also satisfied that Mr Taylor’s affidavits set out sufficient information to permit an informal assessment of the professional costs that have been incurred (Mr Taylor having itemised the costs, included a narrative of what is comprised by those costs and specified the hourly rate at which the costs have been calculated). It has certainly been sufficient to permit Mr Amirbeaggi, who has emphasised his experience in the costs assessment process, to make submissions as to the amounts there claimed.

37. [46]

    As made clear in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 per von Doussa J at 123, a court making a gross sum costs order should be confident that the approach taken to the estimate of costs is logical, fair and reasonable but, once that threshold is crossed, the gross sums can be “fixed broadly having regard to the information before the court” (at 124), provided there is adequate information, and after the parties have had an adequate opportunity to make submissions (as has been the case here).

38. [47]

    Given the relatively small amount of costs in issue (in particular, noting that Mr Amirbeaggi in his submissions appears to accept that costs in the range he has calculated would be fair and reasonable), and given the desirability of avoiding further expense and delay by a costs assessment process, it is appropriate in my opinion to make such an order.

39. [48]

    I am confident I can arrive at an appropriate sum (as required – see Schipp at [22], referred to in Hamod at [813]). I note in this regard that, in Hamod, the Court indicated that, in the exercise of the discretion to make such an order, the Court is not required to undertake a detailed examination of the kind that would be appropriate to a formal costs assessment; rather, the costs ordered should be based on an informed assessment of the actual costs having regard to the information before the Court (see at [819]-[820]).

40. [49]

    I have nevertheless taken into account the submissions made by Mr Amirbeaggi in relation to the various items of costs claimed and as to counsel fees.

41. [50]

    As to the objection to the claim for costs pre-dating the filing of the summary dismissal motion, I accept that, on a review of Annexure A, Mr Poche has not claimed the solicitor costs for items 1, 2, 3 and 6. As to those costs and fees that are claimed in relation to, but which pre-date, the filing of the summary dismissal notice of motion, it is obvious that costs will be incurred in relation to an application before it is filed. Someone must prepare the motion and the supporting affidavit or affidavits. It is fair and reasonable that the solicitor’s or barrister’s costs of so doing and of reviewing drafts of those documents before the motion is filed should be recoverable; and it is not necessary that the costs order should specify that the costs include costs “incidental” to the motion to permit this. In my view, those pre-filing costs are included in the order for the costs of the motion. On the face of Annexure A, item 4 relates to a draft of the notice of motion, as does item 8. Items 5-7 (noting that item 6 is not claimed in any event) appear also to relate to the proposed notice of motion.

42. [51]

    As to the complaint in relation to duplication, this relates to item 11, in respect of which Mr Amirbeaggi says the task was already undertaken in item 9. The narrative for both items includes attendances to finalise and file the notice of motion, which does indicate some duplication, although it may be that there is reasonable explanation for this apparent duplication. As to item 31 (“attendance to an email from YBL re query about directions hearing and previous orders and issues from creditors meeting and then respond email”) the complaint is that no email was sent by YBL2 nor was a reply received. These items total $1,540.00. The narrative is sufficiently detailed to suggest that it is unlikely that the work recorded simply did not occur but even if there is a basis to this complaint, the application of a discount (as to which I discuss below) would accommodate the contingency (to an extent) that part of the sums claimed for duplication or otherwise would be disallowed on a costs assessment.

43. [52]

    As to the so-called “items of administration” – items 13 (attendance to email from JR re seeking PDF version of affidavit of 21.3.25 and then locate and email same); 23, (attendance to file of affidavit of Mr Taylor of 7.11.25); and 26-29 (uploading Ex PT-2 to Dropbox for service; organising printing court books; liaising with printing company for the court books; and compiling tender bundle for hearing including updating further affidavit) relate on their face to document management, filing affidavits, organising documents for service and the printing of court books. These items total $2,645.50. The complaint that these are items of administration does not gainsay that costs of this kind would necessarily have been incurred in preparing the motion for hearing. Again, the application of a discount will (to an extent) reflect the contingency that, on a costs assessment, those amounts would be reduced.

44. [53]

    Finally, as to the complaint that item 20 was excessive in that the submissions there referred to were three pages in length and said to be “mostly on background” (which Mr Amirbeaggi submits would have taken two units, i.e., 12 minutes, to read), it should be noted that the narrative for item 20 extends to considering the relevance of authorities in relation to non or third party costs orders. It is by no means self-evident that it would take only 12 minutes to complete the task of reviewing authorities on the issue of non-party or third-party costs.

45. [54]

    As to the complaints as to counsels’ fees, I do not accept that the amount claimed for Mr Charles Taylor’s fees is not reasonable nor do I accept that the costs of a second, but more junior barrister who charges at the rate here identified, is not reasonable; particularly if, as has been submitted by Mr Poche, the retainer of Mr Charles Taylor permitted work to be carried out at a lesser cost than had it been done by Mr Rogers (or, for that matter, I would add Mr Taylor). As to Mr Rogers’ costs, I do not accept that costs pre-dating the filing of the motion should, for that reason, be excluded (for the same reason as explained above in relation to the solicitor’s costs). Nor do I accept that the charge of the uplift fee was unreasonable in the circumstances (where its inclusion, as provided for under the retainer agreement, does not render the overall fee charged unreasonable).

46. [55]

    I note that Mr Taylor has applied a discount to the actual solicitor/client fees of 15% and a discount to the actual counsel fees of 10% (Mr Taylor’s first affidavit at [38] and [40]). As a rule of thumb, I would expect that on an assessment process there would be recovery on a party/party basis of somewhere in the order of 70-80% of solicitor/client costs and of somewhere close to 100% of counsel’s fees (provided they are reasonable in amount as is the case here). On that basis, while Mr Taylor has perhaps slightly over-estimated the amount of solicitor’s costs that might be recovered on a formal assessment process, he has under-estimated the amount likely to be recoverable in respect of counsel fees. Moreover, the overall quantum claimed is relatively small. While ordinarily I would apply a further discount to the estimated recoverable fees on a party/party basis in order to allow for contingencies in the assessment process, the suggested discount of 30% suggested by Mr Amirbeaggi is in my opinion excessive. Ordinarily, I would apply a discount of say 10% for such a purpose. However, in the present case, that discount (i.e., further to the discount that Mr Poche has applied to the solicitor/client costs in order to reach his estimate of party/party costs) should in my view be relatively small (to reflect the limited scope of the costs that would be the subject of review).

47. [56]

    On a broadbrush basis, I would have allowed counsel fees (including the uplift) in full, without discount. As it is, the amount claimed by Mr Poche is in my view more than reasonable and is fair. I would therefore allow the amount claimed for counsel fees in full. As to solicitor’s costs, I would allow the amount claimed by Mr Poche but with a discount of 5% against the contingency that, on a costs assessment process, some of those costs might have been disallowed or reduced beyond the discount that Mr Poche has applied. On my calculations, that results in an overall gross sum costs order in respect of the costs of both the summary dismissal application and the gross sum costs application of $32,332.12, which I would round down to $32,000.00.

48. [57]

    As to the claim for interest, I see no reason to impose on the Registry the burden of calculation of interest. Interest will be payable in accordance with s 101(4) of the Civil Procedure Act at the prescribed rate. However, I consider that it is appropriate that the orders make clear that interest runs on that component of the costs orders relating to the summary dismissal notice of motion from the date on which those costs were first ordered (24 November 2025).

49. [58]

    Finally, as to the application for the third-party costs to be ordered on a gross sum basis, there was no objection raised to this (simply the complaint as to the line items referred to above) and it is consistent with the costs orders made in November 2025.

Orders

1. [59]

   For the above reasons, I make the following orders:

   1. (1)

      Amend orders 2 and 3 made on 10 November 2025 to read as follows:

   2. (2)

      Note that interest on that component of the gross sum costs orders which relates to the Summary Dismissal Notice of Motion ($27,655.78) shall run and be calculated from the date of the making of the original costs orders (24 November 2025).