Gorilla Rush Pty Ltd v Fraser

On 14 August 2025, Ward P and Leeming JA dismissed with costs an application for leave to appeal brought by Gorilla Rush Pty Ltd and Mr Samuel Johnson, its sole director and shareholder, who together are the defendants in the court below, against interlocutory decisions of the District Court (Neilson DCJ) (1) refusing to strike out certain paragraphs of the statement of claim filed by the plaintiff, Mr Fraser; and (2) granting security for costs in their favour, but not in the amount sought: see Gorilla Rush Pty Ltd v Fraser [2025] NSWCA 191.

By a notice of motion filed on 29 April 2026, Mr Fraser seeks an order that those costs, which have been assessed in the sum of $13,897.68, be paid forthwith.

The general principle is that interlocutory costs orders are not payable until the conclusion of the proceedings: see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.7(2). That principle recognises that during the course of proceedings the parties may bring various interlocutory applications in which costs orders are made both in their favour and against them and that it is preferable that costs orders in favour and against the parties be netted off rather than for costs orders to be assessed and paid individually. It also reflects the fact that interlocutory costs orders may be vacated.

There is a question whether the principle applies to appeals or applications for leave to appeal against an interlocutory order. That question was left open by Gleeson JA in Collier v Country Womens Association of New South Wales [2017] NSWCA 303. In that case, his Honour after referring to the following passage from the judgment of Beazley, Giles and Hodgson JJA in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 at [49]:

As Gleeson JA pointed out at [17], the reference to “conclusion of the proceedings” in UCPR r 42.7(2) does not include a reference to any final appeal from the proceedings below.

Like Gleeson JA, I should proceed on the basis that UCPR r 42.7(2) includes the costs of an interlocutory appeal.

The Court has a discretion to depart from the principle stated in UCPR r 42.7(2). Matters that are relevant to the exercise of that discretion include (1) whether the interlocutory determination represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect of the proceedings; (2) whether the party against whom costs have been ordered has acted unreasonably; and (3) for how much longer the proceedings are expected to last: see Fiduciary Ltd v Morning Star Research Pty Ltd [2002] NSWSC 432 at [11]-[13] per Barrett J, and the cases cited there.

In my opinion, taking account of those matters, this is an appropriate case in which to order that the costs be payable forthwith. The appeal proceeding is a separate and identifiable matter from the other matters in the primary proceedings, and the costs order made by Ward P and Leeming JA is plainly not open to be set aside at a later stage in those proceedings.

As the respondent points out, Ward P and Leeming JA concluded that the application for leave to appeal was misconceived. When ordering the applicant to pay the respondents costs they said this at [36]:

Finally, the proceedings have not yet been set down for a hearing. There is currently an application to transfer the proceedings to the Federal Court. Whether or not that succeeds, it seems likely that a hearing will not occur for some time.

The respondent seeks his costs of the current application. I am not prepared to make that order. In my opinion, the costs of the current application could have been avoided if the respondent had sought an order that his costs be payable forthwith at the time of the original application for leave to appeal was heard. Moreover, an award of costs in relation to the current application would likely create another round of disputes over costs relating to the applicants’ application for leave to appeal. That could have been avoided if the respondent had made his application before having his costs assessed. In addition, the likely amount involved makes a further order for costs in the circumstances undesirable.

Accordingly, the order of the Court is that the respondent’s costs of the application for leave to appeal be payable forthwith.