The Owners - Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd (No 2)

On 12 December 2024, I published a judgment in this matter granting the plaintiff Owners Corporation leave to adduce further expert evidence. [1]

At [45], I said:

I have now received submissions from the defendants as to the amount that they contend should be awarded for their costs thrown away.

Costs that are “thrown away” are past costs which would not have been expended but for the event in question: here, the granting of leave to the Owners Corporation to adduce further evidence. [2]

Costs which are “thrown away” must be genuinely wasted and not represent costs that remain relevant to the ongoing litigation. [3]

The first and second defendants, the Meriton parties, claim costs thrown away of $78,525 comprised of:

The work said to have been done by Meriton’s in-house lawyers is described at a high level of generality. Senior Counsel’s memorandum of fees are in evidence, although redacted, presumably to protect privileged material. Some of Senior Counsel’s fees relate to work done after delivery of my judgment.

There is also in evidence invoices from five experts which do not descend into any particularity and evidently constitute all of those experts’ fees to date. It appears to me to be highly unlikely that, in the circumstances I described in detail in the 12 December 2024 judgment, all of the work done by those experts has been “thrown away”. Indeed, it seems likely that much of such work will remain useful when meeting the Owners Corporation’s further evidence.

The third, fourth and fifth defendants do not claim any amount for expert fees but claim $6,008.50, $6,072 and $10,153 respectively for solicitors’ costs said to be thrown away.

The very high level of evidence that is before me about these matters means I would necessarily have to make a very broad-brush decision to come to a conclusion as to the just amount to require the Owners Corporation to pay as costs thrown away.

Further, as Senior Counsel for the Owners Corporation has emphasised, some proportionality must be retained between what has happened and the amount the Owners Corporation should pay.

In those circumstances, I propose to give the parties a choice.

I will fix costs thrown away at $25,000 for the first and second defendants, and $3,000 for each of the third, fourth and fifth defendants, or refer the question out to a costs assessor on the basis that the costs of the reference will follow the event of whether a party does better at the reference than the figures that I am proposing.

I am proposing a “one in all in” regime. That is, either all parties agree to the figures I am proposing, or the question of all parties’ costs will be referred.

The parties should confer and let my Associate know, by 5pm on 14 March 2025, which course they prefer.