Proportionate costs order: Exaggerated damages submissions

Although not a medical claim, Guru v Coles Supermarkets Australia Pty Ltd (No 2) [2017] NSWDC 90 is of interest for its consideration of an application by the defendant for a modified costs order, described as a proportionate costs order. The defendant’s application sought to invoke the wide discretion the court has for determining costs: s 98(1) Civil Procedure Act 2005 (NSW).

Referring back to the primary decision Guru v Coles Supermarkets Australia Pty Ltd [2016] NSWDC 249, the trial judge noted that on behalf of the plaintiff the claim for damages was submitted in the sum of $1,213,812.40. In that primary judgment, at [5], that claim was described as exaggerated, but not exaggerated by the plaintiff herself. It was also said that the schedule bore little relationship to the evidence. Damages were ultimately assessed at less than 10% of that sum ($90,130.45).

As the damages awarded were less than $100,000, the limit on costs that the plaintiff might recover was 20 per cent of $90,130.45, hence $18,026.09.

The trial judge reduced the order for costs in favour of the plaintiff to 60% of the capped amount (hence $10,801.65), commenting at [10]:

Having regard to the way in which the case was fought, the defendant was required by the plaintiff to contest a case on damages which, to a very large proportion, could not have been reasonably sustained on the evidence that was served and tendered. In my view, this conclusion justifies a proportionate costs order in this case.



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