Australia, Aug. 23 -- New South Wales Land and Environment Court issued text of the following judgement on July 23:

1. On 20 June 2025, I delivered judgment in these proceedings: Lewington v Dulyakarn [2025] NSWSC 635 (Principal Judgment). This judgment assumes familiarity with and uses the same defined terms as appears in the Principal Judgment.

2. The plaintiff sought to recover $170,000 paid to the defendant. I determined that, save for the return of a $20,000 "processing fee" paid by the plaintiff to the defendant, the plaintiff's claims failed.

3. I directed the parties to agree a form of final orders to give effect to my reasons, including as to costs, and failing agreement, provide any proposed orders and submissions to my chambers, such that any remaining issues would be determined on the papers.

4. The parties were able to substantially agree orders to give effect to my reasons, save as to costs and the accrual date of pre-judgment interest.

5. These reasons determine the appropriate costs order and the accrual date of pre-judgment interest.

Overview of parties' positions

6. The plaintiff seeks an order for costs on the ordinary basis, or in the alternative a percentage of her costs on the ordinary basis to take into account her modest success. No percentage was specified.

7. The plaintiff submits that costs follow the event, and the relevant "event" here is judgment for the plaintiff for a monetary sum. Further, the plaintiff submits that the Court should order costs in the plaintiff's favour for the whole of the proceeding as courts do not usually apportion costs between issues where there has been mixed success: citing Cretazzo v Lombardi (1975) 13 SASR 4 at [12] per Hogarth J; Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 90 ALJR 270; [2015] HCA 53 at [6] per French CJ, Kiefel, Nettle and Gordon JJ; Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10] per Brereton J.

8. The defendant seeks an order for costs on the ordinary basis, or in the alternative a nominal reduction of no greater than 5% of the costs payable to reflect the plaintiff's limited success.

9. The defendant submits that costs follow the event, and the relevant "event" here is the practical result that the defendant succeeded. In support of this characterisation of the "event", the defendant relied on Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 (Ryde Developments) where the Court (Beazley P, Payne JA and Barrett AJA) stated at [6]:

[6] ... the general rule is that the Court is to order that costs follow the event. The "event" may be characterised in more than one way. Generally the "event" refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim ...

10. In the alternative, the defendant submits that the issue in relation to the $20,000 processing fee is a severable and discrete issue that only took up a minimal amount of trial time. The defendant submits that if a reduction is to be made to the costs payable by the plaintiff, such a reduction should be nominal and no greater than 5%.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198307e9e5547a4aed599276)

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