Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. On 13 March 2025, I delivered judgment dismissing the plaintiff's amended summons seeking judicial review of a decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) pursuant to s 69 of the Supreme Court Act 1970 (NSW) and ordering that the "plaintiff pay the costs of the first defendant in this Court": Khanna v Bunnings Group Limited [2025] NSWSC 199 (PJ or primary judgment).

2. The first defendant, Bunnings, had indicated that in the event that it was successful it would seek a gross sum costs order. In the primary judgment, I directed a timetable for Bunnings to file and serve any evidence upon which it wished to rely in seeking an order that it be entitled to a specified gross sum instead of assessed costs, and if so in what sum; and for the plaintiff to file any evidence in response. The parties were also directed to exchange submissions.

3. In accordance with those directions, Bunnings filed submissions and two affidavits sworn by Mr Vince Ripepi, solicitor, in support of its application for a gross sum costs order. The figure that Bunnings nominated as appropriate to be specified was $25,750.50 (being 60% of what Bunnings says are its total costs incurred of $42,917.50). However, I do not understand Bunnings' application to be limited by the nominated figure. That is to say, I do not understand Bunnings' position to be that unless it is awarded a gross sum costs order in that amount, the application should be refused and the parties should be sent to assessment. Instead, I understand Bunnings' application to be for a gross sum costs order, on the footing that if the Court considers it appropriate to make such an order, the amount is to be determined by the Court.

4. The plaintiff did not file any evidence with respect to the gross sum costs question itself. Instead, in three different sets of submissions (each differently described), the plaintiff (1) asked the Court to defer any decision on costs pending the outcome of an unfiled notice of motion for reconsideration of the primary judgment, which was accompanied by an unfiled affidavit made 26 March 2025; (2) sought to be given an opportunity "to file a full response and supporting affidavit, if required, upon resolution of the pending motion"; and (3) said (apparently in the alternative) that Bunnings' application should be dismissed. The plaintiff also raised concerns with respect to whether Mr Ripepi's affidavits should be received (discussed below). In a fourth submission (filed 16 June 2025 and discussed below), the plaintiff stated that he did not intend to file any further evidence on the gross sum costs application.

The plaintiff's request for deferral of consideration of the application

5. The primary basis on which the plaintiff opposes Bunnings' application is that a gross sum costs order would be premature given what he described as his "pending" notice of motion seeking a stay and reconsideration of the primary judgment in these proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16. That notice of motion was to be supported by an affidavit affirmed by the plaintiff on 26 March 2024. However, although copies of both documents were emailed to the Court, neither appears to have been filed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197af31898d4e00463c50a44)

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