Rahman v Rahman (No 2)

1. [1]

   THE COURT: On 2 October 2025, the principal judgment involving these parties was handed down: Rahman v Rahman [2025] NSWCA 219. In what follows, familiarity with that judgment is assumed. The proceedings before the primary judge, Slattery J, are ongoing and are next listed for directions on 16 December 2025 before the Equity Registrar.

2. [2]

   Subsequent to the publication of this Court’s reasons for judgement, the successful respondents sought the making of lump sum orders for costs. Directions were made for the exchange of evidence and submissions. The applications were considered on the papers.

Motions seeking gross sum costs orders

1. [3]

   On 16 October 2025, the successful first respondent filed a Notice of Motion seeking the following orders:

2. [4]

   On 22 October 2025, the Registrar of the Court of Appeal remitted the application for an order under the Vexatious Proceedings Act 2008 (NSW) to the Equity Division.

3. [5]

   On 16 October 2025, the successful second and third respondents filed a Notice of Motion seeking the following orders:

4. [6]

   Evidence was exchanged and written submissions were made by each party:

   1. (1)

      The evidence of the first respondent comprised an affidavit of Bharath Balasubramanian sworn 16 October 2025.

   2. (2)

      The evidence on behalf of the second and third respondents comprised two affidavits of Andrew John Fleming sworn 17 October 2025 and 5 November 2025.

   3. (3)

      The evidence of the applicant was an affidavit he swore on 14 November 2025.

5. [7]

   On 20 November 2025, the Court directed the second and third respondents to provide further details identifying costs claimed for work undertaken by the second and third respondents personally, via their respective law firms, which were included in their original calculation of total costs. The second and third respondents filed further submissions and evidence in response. A marked-up schedule of the invoices exhibited to Mr Fleming’s affidavit of 16 October 2025 was annexed to the submissions and the relevant entries, being the time billed for personal work conducted by each of the second and third respondents, were highlighted. The Trustees had initially claimed $15,312 (incl. GST) in legal costs for work undertaken personally by the third respondent and $8,294 (incl. GST) for work undertaken personally by the second respondent. Removing those charges, the total cost claimed for professional fees with respect to the appeal was $58,817.94 (noting the original amount of $82,423.94 identified in the 16 October 2025 Notice of Motion).

6. [8]

   The costs for the present gross sum costs order application remained unmodified at $8,756 (the amount identified in the Notice of Motion), as the second and third respondent did not personally charge for work related to the application for costs itself. Disbursements claimed were the same.

Evidence

1. [9]

   Mr Balasubramanian stated in his affidavit that he has practiced as a solicitor with his present firm, Marsdens, since about August 2013 and that he has experience in matters subject to the costs assessment regime.

2. [10]

   There was a rate increase during the time Marsdens was acting for the first respondent in this matter. Two sets of rates were therefore provided and can be summarised as follows:

   1. (1)

      Barath Balasubramanian, Solicitor: $680 per hour exclusive of GST (admitted as a solicitor in August 2013)

   2. (2)

      Jade Ellis, Associate, Solicitor: $440 per hour exclusive of GST (admitted June 2024)

   3. (3)

      Lily Chester, Solicitor: $400 per hour exclusive of GST (admitted June 2024)

   4. (4)

      Jack Carroll, Law Clerk: $280 per hour exclusive of GST

   5. (5)

      Korcula Cowan, Law Clerk: $280 per hour exclusive of GST

   6. (6)

      McKenzie Young, Law Clerk: $280 per hour exclusive of GST

   7. (1)

      Barath Balasubramanian, Solicitor: $700 per hour exclusive of GST (admitted August 2013)

   8. (2)

      Roland Blackstone, Partner: $600 per hour exclusive of GST (admitted July 2017)

   9. (3)

      Jade Ellis, Senior Associate, Solicitor: $500 per hour exclusive of GST (admitted June 2024)

   10. (4)

       Amber-Jayne Mathews, Solicitor: $440 per hour exclusive of GST (admitted February 2025)

   11. (5)

       Tony Daoud, Solicitor: $400 per hour exclusive of GST (admitted August 2023)

   12. (6)

       Lily Chester, Solicitor: $400 per hour exclusive of GST (admitted June 2024)

   13. (7)

       Korcula Cowan, Law Clerk: $290 per hour exclusive of GST

   14. (8)

       McKenzie Young, Law Clerk: $290 per hour exclusive of GST

3. [11]

   Mr Balasubramanian gave evidence that he was familiar with rates charged by other law firms of solicitors practicing in commercial litigation and the rates set out were “comparable and in many cases less than is charged by larger firms”.

4. [12]

   Professional fees and disbursements from the below proceedings were acknowledged as being necessarily excluded for the purposes of this application. Mr Balasubramanian stated that to date, the first respondent has incurred professional fees of $74,661.42 (including GST) in respect of the leave to appeal application before this Court, and fees in the amount of $24,521.52 (including GST) for disbursements.

5. [13]

   In preparing the present cost application, a further $5,338.66 in professional fees (inclusive of GST) were said to have been incurred but remained unbilled. Mr Balasubramanian estimated an additional $4,400 in professional fees is to be expected in dealing with this application for costs and estimates approximately $990 having been or to be incurred in disbursements (incl. GST).

6. [14]

   Annexed to his affidavit were documents used in the calculations of costs. It was noted in Mr Balasubramanian’s affidavit that the excluded costs related to the proceedings below were highlighted, and that all other line items related to the costs of these proceedings (and the final figure given accords with that assumption).

7. [15]

   Fee schedules for the engagement of junior counsel were set out in the affidavit and supported by documents annexed thereto. Mr Brown, the appointed counsel for these proceedings, undertook work at a rate of $500 per hour or $5,000 daily (plus GST). The total charged by counsel was set out in the affidavit text, and an itemised list of charges was included in the memorandum of fees annexed to Mr Balasubramanian’s affidavit. Counsel fees were $23,100 in total (incl. GST).

8. [16]

   The affidavit of Mr Balasubramanian states his expectation that on an assessment of her ordinary costs the first respondent would be entitled to receive approximately 70% of professional fees paid and 100% of disbursements. The following figures were identified as the post-discount amounts to which the first respondent was entitled:

9. [17]

   Mr Fleming’s first affidavit of 17 October 2025 contained the substance of the evidence submitted about the Trustee’s costs. The second affidavit, providing an update on the position of the parties and the proceedings since the first affidavit was filed, contained the balance of evidence submitted for this application, up to 5 November 2025. The mark ups in the annexure to the further submissions requested by this Court and provided on 25 November 2025 were incorporated into a review of the material provided.

10. [18]

    Mr Fleming stated he has over 20 years practice experience and extensive experience as a court appointed administrator and Trustee for Sale, as well as experience in cost assessments in this Court.

11. [19]

    The hourly rates for Walker & White, the firm that acted for Mr Fleming from the time he was joined as a third respondent to the appeal proceedings on 4 June 2025, were listed as being:

    1. (1)

       Andrew Fleming, Legal Practitioner Director: $600 per hour exclusive of GST (admitted May 2005 in NSW)

    2. (2)

       Jamie Cklamovski, Senior Lawyer: $550 per hour exclusive of GST (admitted October 2013)

    3. (3)

       Shelley Potter, Junior Lawyer: $350 per hour exclusive of GST (admitted November 2023)

    4. (4)

       Joshua Cklamovski, Legal Assistant: $100 per hour exclusive of GST

12. [20]

    The hourly rates for Emerson Lewis Group, the firm that has acted for the second respondent Mr Calabretta (with the assistance of Walker & White) since the time he was joined as a third respondent to the appeal proceedings on 4 June 2025, were:

    1. (1)

       Stefano Calabretta, Legal Practitioner Director: $650 per hour exclusive of GST (admitted April 2009)

    2. (2)

       Andrew Hack, Senior Associate: $500 per hour exclusive of GST (admitted August 2025)

    3. (3)

       Ruby-Ann Schmelzer, Associate: $400 per hour exclusive of GST (admitted September 2021)

13. [21]

    Itemised tax invoices for both Walker & White and Fleming Law, and for Emerson Lewis Lawyers, for the period between 30 June 2025 to 2 October 2025, were provided.

14. [22]

    Walker & White had incurred approximately $40,384 for professional fees regarding the appeal proceedings as calculated on an indemnity basis, and $12,880.02 for disbursements (including GST). Emerson Lewis Group Pty Ltd had incurred professional costs of approximately $16,522 in the appeal proceedings as calculated on an indemnity basis, and $12,673.92 for disbursements (including GST). As noted above at [6], the Trustees incorporated claims of $13,920 in legal costs for Mr Fleming personally via Walker & White ($15,312 inclusive of GST), and $7,540 personally for Mr Calabretta via Emerson Lewis Group ($8,294 inclusive of GST).

15. [23]

    Cost disclosures and invoices related to the engagement of the services of Mr Lachlan McIntyre, Barrister, and Mr Tom O’Brien, Barrister, were provided. Mr McIntyre’s rates were $300 per hour or $3,000 daily. Mr O’Brien’s rates were $525 per hour and a $5,250 daily rate.

16. [24]

    Mr Fleming gave evidence that, in his experience, costs recoverable following assessment would be in the following ranges:

17. [25]

    An additional affidavit was filed to provide evidence of the settlement of the remaining trust property (Property 1A) on 31 October 2025. The property was purchased by the applicant Mr Rahman, and his daughter, Wafa Rahman.

18. [26]

    Also included was an email from Mr Rahman to the Registry of the High Court of Australia indicating an intention to apply for special leave to appeal the 2 October 2025 decision of this Court.

19. [27]

    The details of orders facilitating the consideration of a possible gross sum cost orders in the court below, made by Slattery J on 24 October and 30 October 2025, were also provided. Slattery J indicated in those orders that a lump sum cost order could be made in respect of some, but not all, of the litigation in the ongoing proceedings of the Court below. Those orders were as follows:

20. [28]

    That determination is, at present, pending.

21. [29]

    In response to a request from the Court, additional information regarding costs was provided. If the costs attributable to the work personally undertaken by the second and third respondents were removed from the claims made, the total costs claimed by the Trustees was $58,817.94 for the leave to appeal application, plus $8,756 for the preparation of the present costs application (both figures inclusive of GST).

22. [30]

    The Trustee’s further submissions summarised their claim as follows:

23. [31]

    Mr Rahman filed an affidavit on 14 November 2025. Virtually all of that evidence is irrelevant to the present applications.

24. [32]

    An affidavit affirmed 17 July 2025 and submitted pursuant to proceedings below was annexed to Mr Rahman’s affidavit. An affidavit filed 14 October 2025, similarly filed in relation to the proceedings below, referring to asserted jurisdictional and constitutional issues, was also annexed.

25. [33]

    Affidavits of Dr Faruque Ahmed, Mr Ruhul Amin, Mr Abu Rai, Mr Majher Bobby Syed, Mr John Chabuailuk and M Ahsanul Haque, all dated 13 October 2025, were annexed to the applicant’s affidavit, and all, with remarkable consistency, gave evidence about their own observations regarding participants involved in the auction of Property 1A. These statements all observed the first respondent talking to someone during the auction, who later talked to the real estate agent sometime after. The statements were made to suggest that the first respondent engaged this person to bid with no intention to purchase with a view to artificially raise the property price.

26. [34]

    Judgments of and communications referencing determinations made in the Federal Circuit and Family Court of Australia (‘FCFCA’) were annexed to the applicant’s affidavit. Correspondence related to a hearing before NCAT where the former matrimonial home, Property 1, was the subject matter was also annexed, a matter that related to the termination of the former tenant’s occupancy around August 2023.

27. [35]

    The affidavit contained submissions that the first respondent’s costs submissions and the second and third respondent’s costs submissions were not itemised and were given without proof.

28. [36]

    It was further submitted that the Trustees for Sale, the second and third respondents, were not able to claim professional time through their own firm and that those costs should not be recoverable pursuant to Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 and the abolishment of the Chorley exception in Australia.

29. [37]

    Jurisdictional assertions which were rejected in the appeal were again advanced.

Submissions

1. [38]

   The Court has power to make gross sum cost orders per s 98(4)(a) of the Civil Procedure Act 2005 (NSW) “to avoid the expense, delay and aggravation involved in protracted litigation which may arise out of contested costs assessments”: Vanvalen v Neaves [2005] NSWSC 1003 at [38].

2. [39]

   It was submitted that such orders were necessary in this case because:

3. [40]

   The first respondent submitted that costs of the proceedings must be proportionate to the importance and complexity of the subject matter of the dispute. In the present case, the applicant unnecessarily increased costs by undertaking the following:

4. [41]

   The affidavit of Mr Balasubramanian was submitted as being sufficient “to enable the court to make an informed assessment of the actual costs”.

5. [42]

   It was further submitted that it is usual to apply a discount of 30-35% in the case of a party/party order when assessing a gross sum costs order. In those circumstances it was submitted by the first respondent that a costs order of between $73,051.44 to $76,784.51 would result from the application of these principles, applying Hamod v State of NSW [2011] NSWCA 375.

6. [43]

   It was submitted that, with respect of the present application, costs of approximately $4,400 (incl. GST) were incurred, per the affidavit of Mr Balasubramanian, and that, consistent with Bell CJ in Brown v The Stables Perisher Management Pty Ltd (No 2) [2022] NSWSC 902 at [39], an allowance of $2,860, or such other amount as the Court considers appropriate, should be allowed for the first respondent regarding the present application.

7. [44]

   The Trustees relied on the two affidavits sworn by Andrew John Fleming in respect of the Trustees’ Notice of Motion for a gross sum costs order.

8. [45]

   It was submitted that the power to make a gross sum costs order “is unconfined and apt to be exercised whenever the circumstances warrant its exercise”, one example of which being a scenario where assessment of costs would be protracted and expensive and where there were concerns regarding the impecuniosity of the payer. The second and third respondents relevantly pointed to their affidavit evidence that indicated:

9. [46]

   That:

10. [47]

    And that:

11. [48]

    The second and third respondents further submitted that, as Mr Rahman’s appeal and motions before the Court wholly failed, he should bear the Trustees’ costs from his entitlement to the proceeds of sale, noting that per r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), Trustees are ‘ordinarily’ paid all of their costs (though a discount typical for a lump sum assessment was accepted).

12. [49]

    In response to Mr Rahman’s further submissions, the second and third respondents submitted that the costs claimed were calculated by reference to itemised particulars, time records, and justified hourly rates, and that the Trustees were, at all relevant times, represented.

13. [50]

    The second and third respondents further submitted that they were entitled to recover the costs charged personally in these proceedings by Mr Fleming and Mr Calabretta because they have been empowered to charge their fees against the trust corpus by order of Slattery J on 16 December 2024. Those orders made by his Honour were as follows:

14. [51]

    The second and third respondents submitted that their fees are a liability of the trust, and they are entitled to be indemnified against the trust corpus. It was further argued that their charging of fees is consistent with what the High Court said in Birketu Pty Ltd v Atanaskovic [2025] HCA 2; 99 ALJR 321 as their individually accrued fees were charged to professional firms, Walker & White and Emerson Lewis Group. The third respondent, Mr Fleming, is a Director of Walker & White and the second respondent, Mr Calabretta, a Director of Emerson Lewis Group. In this way it was argued the charges of the respondents were dissimilar to those considered in Bell Lawyers and Birketu, as here the Trustees’ fees were “actually incurred”, and their charges were at least theoretically more aligned with the in-house solicitor rule preserved in Bell Lawyers. They argued that the structure of the firm within which they worked, as incorporated law firms, further supported that conclusion.

15. [52]

    What was said by Justice Leeming, sitting at first instance, in Elias v Smidt (No 3) [2025] NSWSC 1062 was suggested as fortifying the position of the Trustees.

16. [53]

    The applicant’s submissions in response largely relitigated the matters presented in the substantive appeal. In essence, the applicant’s argument remains one of causation, that is, ‘but for’ the first respondent failing to execute the property sale ordered by the FCFCA, the resultant costs would not have been incurred and in such a case, “costs should fall on those who’s conduct created the litigation”. In addition, the independent Trustees for Sale were suggested to have unnecessarily duplicated costs having “pursued overlapping applications in multiple jurisdictions” and it was submitted that the Court is mandated to take into account these matters. The “overlapping applications” referred to were not identified in the applicant’s submissions.

17. [54]

    The applicant further submitted that the first respondent failed to provide an itemised bill or time records to substantiate her claim for costs, and that the second and third respondents claimed their costs without having provided itemised particulars, time records or an hourly rate justification.

18. [55]

    The submission that the Trustees acted in person and therefore could not seek professional remuneration “for their own attendances” was also reiterated.

19. [56]

    Finally, the applicant submitted that any costs assessment should be deferred in circumstances where a special leave application presently before the High Court and an appeal of the original FCAFC decision are pending:

20. [57]

    The evidence before the Court of the application to the High Court of Australia comprises an email addressed to the High Court Registrar from Mr Rahman indicating an intention to appeal. No evidence of any application for leave to appeal actually filed was included in the affidavit of Mr Rahman, dated 12 November 2025.

21. [58]

    The relief sought by the applicant was thus:

22. [59]

    The appellant was invited to, but did not, make further submissions in reply to the second and third respondents’ further submissions provided on 25 November 2025 and on the subject of costs charged by the Trustees.

Consideration of applications for gross sum costs orders

1. [60]

   Section 98(4) of the Civil Procedure Act provides:

2. [61]

   A gross sum costs order can be made any time before costs are referred for assessment. Section 98 confers a wide discretion on the Court. The principles were stated by Beazley JA (as her Excellency then was) in Hamod at [813]-[820], see also Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] per Bell CJ, Kirk JA, and Adamson JA.

3. [62]

   In Hamod, Beazley JA at [813] identified some of the factors which merit particular consideration, including the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their cost, and the capacity of the unsuccessful party to satisfy any costs liability.

4. [63]

   The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123; [1995] FCA 350; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[29].

5. [64]

   A “broad brush” approach is appropriate when a gross sum costs order is made. To require the same or a similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673 per O’Loughlin J; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].

6. [65]

   We are satisfied that it has been shown that this is a case where any assessment of costs would be protracted and expensive, and the party ordered to pay the costs, the applicant, is likely unnecessarily to delay any final resolution of these proceedings and to cause disproportionate costs to be expended in the assessment of costs and the inevitable appeals from that process. We accept Mr Fleming’s evidence that, unless the Trustees’ involvement in these proceedings is brought to an end now by the making of a gross sum costs order, the applicant’s entitlement to the proceeds of sale may become nil or negative.

7. [66]

   We are persuaded that, if a lump sum costs order is not made now, the applicant will continue to seek to litigate completely irrelevant matters in relation to the costs issue against all the respondents, as demonstrated by the irrelevant material sought to be deployed on the present application about observations of participants allegedly involved in the auction of Property 1A. This was not an issue litigated in this Court and, even if it were, the observations about the first respondent which were made could have no bearing on the making of a gross sum costs order.

8. [67]

   The history of protracted litigation, and the submissions of the applicant on this application, are a cogent demonstration that it is appropriate to bring this dispute about costs to an end now. The present case is an appropriate one to make a gross sum costs order.

9. [68]

   The Trustees are entitled now to conduct a final accounting and to bring to an end their involvement in these proceedings. Now that the sales of both Property 1 and 1A have settled, the Trustees’ involvement should be brought to an end as soon as possible. This is to the benefit of all parties, including Mr Rahman. It is overwhelmingly in the interests of the just, quick and cheap determination of the real issues to avoid the expense, delay and aggravation which will, as a matter of near certainty, be involved in a costs assessment.

10. [69]

    The same observations apply to the application for a gross sum order made by the first respondent. The evidence filed by Mr Rahman on this application is a cogent demonstration that he is unable or unwilling to address the real issues which are engaged in any proper consideration of the costs of the proceedings. If a gross sum order is not made now, it is clear that Mr Rahman proposes to seek to relitigate all of his past grievances against the first respondent.

11. [70]

    Mr Rahman’s submission that any costs order should await determination of an as yet unfiled special leave application or the determination of other proceedings involving the first respondent should be rejected. Such a delay would needlessly increase the costs of all parties and would be antithetical to the overriding purpose in Part 6 of the Civil Procedure Act.

12. [71]

    We reject Mr Rahman’s submissions that the costs claimed by the Trustees are excessive or relate to matters other than this appeal. We find that those costs were calculated by reference to itemised particulars, time records and justified hourly rates. The disproportionate amount of costs spent on this leave application is entirely the fault of Mr Rahman. His conduct has needlessly caused all three respondents to spend much more than should have been necessary to defend these proceedings. Mr Rahman characterised the Trustees’ involvement in these proceedings as limited to procedural steps. This is not correct. The repetitive applications brought by Mr Rahman necessitated six appearances before the Registrar, an urgent listing before Price AJA, and repeated updates to material before the Court to deal with amended appeal documents.

13. [72]

    A gross sum costs order should be made in favour of the first respondent and the second and third respondents.

14. [73]

    We accept Mr Rahman’s submission that the Trustees were not entitled to claim for costs charged personally by Mr Fleming and Mr Calabretta via an incorporated legal practice.

15. [74]

    The High Court in Bell Lawyers Pty Ltd v Pentelow explained that solicitors who appear for themselves cannot recover costs for the value of their time spent in litigation. The Chorley exception (named after the English case The London Scottish Benefit Society v Chorley (1884) 13 QBD 872) was abolished. The Court, however, did not disturb the "in-house solicitor rule" which allows in-house lawyers to represent their employers in litigation and recover costs for that work. The High Court returned to this issue in Birketu.

16. [75]

    Subsequent to these decisions, Leeming JA, sitting at first instance, in Elias No 3, closely analysed the relevant principles in the case of an incorporated legal practice and concluded that:

17. [76]

    As Leeming JA pointed out, one purpose for abolishing “the Chorley exception” was its affront to equality before the law. It is now impossible to justify to the defendant faced with a costs order obtained by a solicitor that if the solicitor had been a sole practitioner, the costs would not include the solicitor’s time, but because the solicitor had incorporated a company of which he or she was the sole director and shareholder, the solicitor was entitled to recover his or her costs of work undertaken personally. If the former is an affront to equality, so too is the latter. We agree.

18. [77]

    In Elias No 3, a solicitor retained an incorporated legal practice of which he was the sole shareholder and director to act for him. The claim for that time was the largest component of the costs order sought. Leeming JA held that the solicitor was not allowed to recover his own costs, even though billed via the incorporated legal practice. For essentially the same reasons as given by Leeming JA, we are not persuaded that the structure of the firms within which Mr Fleming and Mr Calabretta work, as incorporated law firms, makes any difference to the analysis.

19. [78]

    In Elias No 3, as here, an individual personally acted through the vehicle of an incorporated legal practice and charged costs of defending litigation in which the individual was a party. This was the case for both the second and third respondent. Recovery of costs charged by the second and third respondents for personal work via an incorporated legal practice is dissonant with the rule against sole practitioners recovering costs for work done defending themselves in litigation. We accept that the position of Mr Fleming and Mr Calabretta is perhaps “theoretically” more aligned with the in-house solicitor exception preserved in Bell Lawyers (see Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 referred to in Bell Lawyers by the plurality at [47]-[48]). Nevertheless, it seems to us incongruous that the second and third respondents could essentially recover the legal costs of personally acting for themselves (albeit through an incorporated legal practice). Mr Fleming and Mr Calabretta are a long way removed from the “employed solicitor” of the Commonwealth Bank Legal Department the subject of Hattersley.

20. [79]

    Mr Fleming and Mr Calabretta are entitled, of course, to be indemnified against the trust corpus. It is appropriate that they do so by order of the primary judge, Slattery J. Mr Fleming and Mr Calabretta are not entitled to be paid costs charged personally by each via an incorporated legal practice.

21. [80]

    We find that the evidence provides a sufficient foundation to permit the Court to make an informed assessment of the actual costs incurred by the first respondent. The invoices contain detailed narratives of the work undertaken. The Court is satisfied that it has the means to make an informed determination of the amount of costs to be ordered.

22. [81]

    The amount of the claim is between $74,751.37 and $80,501.47. Applying the ‘broad brush’ approach appropriate for such orders, the Court proposes to apply an overall discount in fixing the amount of this gross sum costs order.

23. [82]

    The applicant must pay to the first respondent costs of the application for leave to appeal of $60,000.

24. [83]

    We find that the evidence provides a sufficient foundation to permit the Court to make an informed assessment of the actual costs incurred by the second and third respondents. As we have said, those costs were calculated by reference to itemised particulars, time records and justified hourly rates. The Court is satisfied that it has the means to make an informed determination of the amount of costs to be ordered.

25. [84]

    The original claim by the second and third respondents was for costs of $82,423.94. After removal of the claims for the costs claimed by Mr Fleming via Walker & White, and Mr Calabretta via Emerson Lewis, the total claimed is almost $59,000.

26. [85]

    Applying the broad-brush approach to costs that is appropriate for gross sum costs orders we arrive at a figure of $50,000 for costs to be paid by the applicant to the second and third respondents.

27. [86]

    For essentially the same reasons as we have given in awarding a gross sum cost order, a gross sum cost order should be made for the costs of the Notices of Motion. Given the regrettable history of these proceedings, any further costs assessment would almost certainly invite further delay, disruption, and further unnecessary expenses incurred by all parties.

28. [87]

    Based on the evidence given about the cost of these applications and identifying that the figures submitted necessarily incorporate prospective estimates at least in part, the Court proposes to fix the amount of $7,000 for the second and third respondents costs of this application, and $2,860 for the first respondents costs of this application.

Conclusion and orders

1. [88]

   We order Mr Rahman to pay the first respondent:

   1. (1)

      $60,000 for the costs of the application for leave to appeal; and

   2. (2)

      $2,860.00 for the costs of the motion.

2. [89]

   We order Mr Rahman to pay the second and third respondents:

   1. (1)

      $50,000 for the costs of the application for leave to appeal; and

   2. (2)

      $7,000 for the costs of the motion.