Australia, April 28 -- New South Wales Land and Environment Court issued text of the following judgement on March 28:

1.This is an application for a gross sum costs order, brought pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following the handing down of judgment by Weber SC DCJ on 18 February 2025 in two proceedings brought by these parties against each other. In proceedings 2023/00269787, judgment was given in favour of Excell Gray Bruni Pty Ltd in the sum of $316,264 against all three defendants. The first defendant's claim against Excell Gray Bruni Pty Ltd in proceedings 2023/00440766 was dismissed. In addition to the gross sum costs order, the plaintiff also brings an application for an order for payment of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

2. The procedural history of both actions has some complexities, so I will set the background to the litigation out in some detail. Before I do so, however, I note that the defendants in proceedings 2023/00269787 and the plaintiff in proceedings 2023/00440766 are not before the Court today.

The absence of the opposing parties

3. Each of the defendants (one of whom, the first defendant, brought proceedings against the plaintiff) was called outside the Court three times at 10:00AM, and there was no appearance. I note there was also no appearance by the defendants at the hearing before Weber SC DCJ on 18 February 2025.

4. As to the absence of a party, I note the provisions of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 29.7, which are as follows:

(1) This rule applies when a trial is called on.

(2) If any party is absent, the court--

(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

(b) may adjourn the trial.

(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of--

(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs.

(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.

(5) Subrules (3) and (4) do not limit the court's powers under subrule (2).

5. The obligations placed on not only the parties present, but also the Court, require careful attention to the issue of whether the party or parties who are absent have been given appropriate information as to the hearing before the Court. I have satisfied myself, from examining the affidavits of service which are set out in the Court Book (which is Exhibit A in these proceedings), that the defendants have been made fully and appropriately aware of the hearing before the Court today and that they have been provided with copies of all relevant documentation. I note that the affidavit of service of Hayley Pritchard of 27 March 2025 (Exhibit A, tab 4) sets this out in full.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19619153931d771f40819feb)

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