Banh & Siu

In the matter of MLC 12059 of 2019, Mr Banh (the Applicant) and Ms Hiung (the First Named Respondent) were involved in proceedings concerning threshold issues of forum and jurisdiction. Following the making of consent orders, the Applicant sought an order for his costs, specifically on an indemnity basis. The First Named Respondent sought an order that costs be reserved until the determination of the substantive proceedings. The matter came before Macmillan J.

The court was required to determine whether the circumstances of the case warranted an order for costs on an indemnity basis, or if costs should be reserved pending the outcome of the substantive proceedings. The Applicant sought indemnity costs, while the First Named Respondent argued for reservation of costs, suggesting it would be premature to make an order given the early stage of substantive proceedings and the uncertainty of parties' entitlements.

Macmillan J found that the circumstances of the case were not exceptional enough to depart from the general rule and award costs on an indemnity basis, referencing the Full Court's decision in *Kohan*. The court rejected the First Named Respondent's submission that costs should be reserved, noting that while enforcement might be difficult in the short term, this did not preclude making an order where justified. His Honour considered that the threshold proceedings had been conducted at a significant cost to the Applicant and therefore did not propose to reserve the question of costs.

Consequently, the court ordered that the First Named Respondent pay the Applicant’s costs of and incidental to specific parts of her Response to Initiating Application on a party and party basis. The quantum of these costs was reserved, and the Applicant's application for costs was adjourned for mention to determine the quantum.