NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR ANTHEA PATRICIA HAMMON, ET AL. V/S ASKO APPLIANCES (AUST.) CASE

Australia, Sept. 10 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 11:

1. On 17 July 2025, on the plaintiffs' application, I granted leave to the plaintiffs to rely on the expert report of Marty Denham in the forthcoming hearing of a case in which the plaintiffs seek damages arising from the damage or destruction of their house by a fire alleged to have been caused by a fault in an appliance provided by the defendant: Anthea Hammon v ASKO Appliances (Aust) Pty Ltd [2025] NSWSC 766 ("Hammon v ASKO"). The application was opposed by the defendant. The circumstances and submissions of both parties can be seen in Hammon v ASKO.

2. I indicated a provisional costs order, namely that the plaintiffs pay the costs of and incidental to the notice of motion but, at [42], afforded the parties the opportunity to make short written submission if they sought to urge a different order for costs. In a surprise to nobody familiar with the background to the matter or the conduct of the motion and the proceedings more generally, the plaintiffs availed themselves of that opportunity.

3. I received brief and helpful written submissions by counsel for both parties and have considered those submissions.

4. The plaintiffs submit that the costs should follow the event in the usual way, noting (correctly) that the "event" in this instance is their successful application for leave which was achieved over the defendant's objection. That is, the order should be that the defendant pay the costs of and incidental to the notice of motion. In the alternative, the plaintiffs argue the costs should be costs in the cause. As a further alternative, the plaintiffs invited the Court to make an order that "the costs of the motion be the defendant's costs of the proceedings."

5. In another unsurprising development, the defendant sought to support the costs order I foreshadowed.

6. I accept the plaintiffs' submission that costs orders are not calculated to punish a party and that they are "compensatory" in nature: cf Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [37] ("Sze Tu"). The plaintiffs submitted Sze Tu was "cited with approval" by Walton J in Wang v Fan (No 2) [2025] NSWSC 751. Of course, the Court of Appeal judgment in Sze Tu was binding on his Honour and Gleeson JA (with whom Meagher and Barrett JJA agreed) made a number of general observations about costs in a helpful passage at [37]-[42]. I have applied those observations to the facts of this case and to the determination of the question of costs on this particular and discrete component of the litigation.

7. The Court has a broad discretion when it comes to costs: Civil Procedure Act 2005 (NSW), s 98. Generally, the costs will follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 ("UCPR"). As I have said, in this instance, the relevant "event" is the interlocutory success enjoyed by the plaintiffs. However, the Court may depart from that general approach if "it appears to the court that some other order should be made": UCPR r 42.1 and see Sze Tu at [38]. Many of the observations in Sze Tu related to the situation where a party is successful on some issues and unsuccessful on others in the ultimate cause (in this case, the suit for damages). Neverthelss, I have taken into account and applied the principles and authorities referred to and summarised by Gleeson JA in Sze Tu at [40]-[42].

8. Applying those principles to the circumstances pertaining here, I remain of the view that the plaintiffs should bear the costs of and incidental to the notice of motion. The defendant was entitled to resist the application for leave to rely on an expert report served so late in the piece, in contravention of case management orders and after the parties had engaged in mediation. The plaintiffs' conduct of this aspect of the litigation, with the scantiest of explanation, was dilatory in the extreme. They put neither the Court nor the defendant on notice that they were contemplating getting a new report from a different expert. The new expert was not even briefed for around three months after the date set by Chen J for the service of evidence in reply. The report was not commissioned until 10 June 2025 and was not served until 30 June 2025.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198976bbd751940341425168)

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