Brindabella Resources Pty Ltd v Australian Transit Group Pty Ltd

[2025] WASC 424

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BRINDABELLA RESOURCES PTY LTD -v- AUSTRALIAN TRANSIT GROUP PTY LTD [2025] WASC 424

CORAM:   HILL J

HEARD:   25 SEPTEMBER 2025

DELIVERED          :   3 OCTOBER 2025

FILE NO/S:   COR 58 of 2025

(Consolidated with COR 59 of 2025 & COR 60 of 2025)

BETWEEN:   BRINDABELLA RESOURCES PTY LTD

Plaintiff

AND

AUSTRALIAN TRANSIT GROUP PTY LTD

Defendant

Catchwords:

Costs - Appropriate costs order after originating processes dismissed by consent without a final hearing - Whether plaintiffs' position hopeless - Application for special costs orders - Whether there is a fairly arguable case that maximum amount allowable on taxation is inadequate - Whether originating summonses were unusually difficult, complex, or important - Turns on own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024

Legal Profession Uniform Law Application Act 2022 (WA) s 141(3)
Rules of the Supreme Court 1971 (WA) O 66 r 1

Result:

Plaintiffs to pay the defendants' costs, including reserved costs, to be assessed if not agreed

Defendants' application for special costs refused

Category:    B

Representation:

Counsel:

Plaintiff	:	S P Tomasich
Defendant	:	C S Gough

Solicitors:

Plaintiff	:	K&L Gates
Defendant	:	Grondal Bruining

Cases referred to in decision:

Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121 (S)

BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116

Clark v Richards [2003] WASC 5

David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265

Electricity Generation and Retail Corp trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95

Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd [2025] WASC 307 (S)

Hooper v Cockles Pty Ltd [2025] WASCA 143

Kahu NZ Ltd v Aviation Utilities Pty Ltd [No 4] [2024] WASC 395 (S)

Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122

National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274

O'Neill v Mann [2000] FCA 1680

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Re Walker's Doughnuts Bendigo Pty Ltd [2025] VSC 461

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

HILL J:

1. These proceedings have had a somewhat tortured history. Rather than being a simple, quick, and efficient process that resolved, on a summary basis, whether the plaintiffs owed the defendants the amounts claimed in the statutory demands, significant time was spent by the parties arguing about matters that did not progress the matter towards an ultimate hearing. Three interlocutory processes were filed by the parties and orders were made by the court on six separate occasions (excluding the costs hearing). In this context, it is unsurprising that significant costs have been incurred by the parties.

2. The evidence before the court is that the defendants' solicitors have rendered bills in excess of $190,000 (excluding GST) for these proceedings. Even though I accept that much of the work done by the defendants was in response to the plaintiffs' conduct of the proceedings, on its face, I consider this amount to be disproportionate to both the nature of these proceedings and the amount in issue (of approximately $464,000). This is particularly the case in circumstances where there was no substantive hearing of any matter.

3. In my view, the manner in which these proceedings have been conducted is contrary to the goals and objects set out in O 1 r 4A and 4B of the Rules of the Supreme Court1971 (WA) (Rules). These objects include disposing efficiently of the business of the court, maximising the efficient use of judicial and administrative resources, and ensuring the costs of the procedure are proportionate for both the parties and the State. As Vaughan JA recently noted in Hooper v Cockles Pty Ltd:[1]

   The attainment of the objects in O 1 r 4B RSC is not just a matter for the court. It is also a matter for the litigants in the court and the legal practitioners who practice in the court on behalf of those litigants. A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty: Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 3.1. There is a similar overriding duty to the court and the interests of the administration of justice that must be observed by a barrister: Legal Profession Uniform Conduct (Barristers) Rules 2015 r 4(a), (d), r 23. Those general duties encompass a requirement, when acting in litigation in this court, that legal practitioners assist the court so as best to ensure the attainment of the objects referred to in O 1 r 4B. Legal practitioners practising in the court should act conformably with - and in a manner that best ensures the attainment of - the objects in O 1 r 4B RSC.

   [1] Hooper v Cockles Pty Ltd [2025] WASCA 143 [15].

4. On 25 September 2025, the originating processes were listed before me for a hearing on costs. The plaintiffs say that in circumstances where there was no substantive argument of any of the interlocutory applications or originating processes, the appropriate order is that there be no order as to costs. In contrast, the defendants say the plaintiffs should pay their costs of the interlocutory applications as well as the originating processes. The defendants also seek special costs orders pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2002 (WA) (Uniform Law) to remove the limits in item 11 in Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (Costs Determination) as to the maximum allowances for time as well as total costs.

5. In support of their application for costs, including special costs orders, the defendants filed submissions of 41 pages. Submissions of this length are, in my view, inconsistent with both the nature of the application, as well as PD 2.1 of the Consolidated Practice Directions (CPD), which provides that submissions for an interlocutory hearing should not normally exceed five pages.[2]

   [2] The defendants' submissions also exceed the length of submissions for both trials (10 pages) and appeals (20 pages).

6. For the reasons set out below, I have concluded that the appropriate costs order is that the plaintiffs pay the defendants' costs of the originating processes to be taxed if not agreed. However, I do not consider that special costs orders should be made and dismiss the defendants' application for special costs orders.

Brief procedural history of originating processes

1. On 31 March 2025, the defendants served three statutory demands on the plaintiffs. The first, which was the subject of COR 58 of 2025, was in relation to a series of invoices totalling $279,516.05. The second, which was the subject of COR 59 of 2025, concerned invoices which totalled $151,784.23, and the third, the subject of COR 60 of 2025, also concerned a number of invoices totalling $31,912.98.

2. On 17 April 2025, the plaintiffs filed three originating processes to set aside these statutory demands, together with affidavits in support of each of the applications. Later that day, unsealed and unstamped copies of the originating processes together with stamped copies of the affidavits were served on the defendants' solicitors both physically and by email.[3] On 23 April 2025, stamped copies of the originating processes, together with a letter from the court giving notice of the date the applications were listed for hearing, were served on the defendants by email.[4]

   [3] Affidavit of Lochie Hunter Gibson filed 12 May 2025, 'LHG-03'.

   [4] Affidavit of Lochie Hunter Gibson filed 12 May 2025, 'LHG-05'.

3. On 24 April 2025, the defendants' solicitors wrote to the plaintiffs' solicitors to inform them that, in their view, the applications had not been filed and served within the 21-day period required by s 459G of the Corporations Act 2001 (Cth) (Act), as the sealed originating processes had not been served on or before midnight on 22 April 2025.[5] They invited the plaintiffs to discontinue the proceedings.[6]

   [5] While the 21-day period from 31 March 2025 ended on 21 April 2025, this was a public holiday in Western Australia.

   [6] Affidavit of Lochie Hunter Gibson filed 12 May 2025, 'LHG-06'.

4. This did not occur. Instead, two things happened. First, the defendants filed a notice of conditional appearance (and a summons to dismiss the proceedings). Second, the plaintiffs sought and were granted leave to amend their originating process to seek orders restraining the defendants from applying to wind up the plaintiffs on the basis of the statutory demands.

5. On 22 May 2025, orders were made by the court consolidating the originating processes and programming them through to a hearing not before 17 July 2025. At that stage, Forrester J informed the parties that the court was not listing special appointments 'before August'.[7] Neither party advised the court that the originating processes needed to be heard and determined prior to 21 July 2025.[8]

   [7] ts (22 May 2025) 12.

   [8] As any winding up proceedings relying on the statutory demands was required to be commenced by 22 July 2025, being three months from the expiry of the statutory period which commenced on 22 April 2025.

6. On 5 June 2025, the plaintiffs a further affidavit in support of the originating processes on a restricted basis, pursuant to O 67A r 10(10)(a)(ii) of the Rules. A dispute then arose between the parties as to whether the plaintiffs were required to file an application under O 67B r 5 of the Rules.[9] Ultimately, a summons seeking confidentiality orders over this affidavit was filed by the plaintiffs on 23 June 2025. This summons was listed for hearing on 3 July 2025.

   [9] Affidavit of Mikhail Zulkarnain Bin Safarudin filed 23 June 2025, 'MS-01'.

7. On 27 June 2025, the defendants' solicitors notified the plaintiffs that, in their view, any winding up proceedings relying on the statutory demands needed to be commenced by 22 July 2025.[10] On 2 July 2025, an undertaking was given by the defendants' solicitor not to commence any such proceedings without giving five business days' notice and to inform the plaintiffs by no later than 10.00 am on 10 July 2025 whether the defendants intended to commence proceedings.[11]

   [10] Affidavit of Lochie Hunter Gibson filed 14 July 2025, 'LHG-02'.

   [11] Affidavit of Lochie Hunter Gibson filed 14 July 2025, 'LHG-02', page 8.

8. On 2 July 2025, orders were made by consent dismissing the plaintiffs' application for confidentiality orders, reserving the costs of the application, and reprogramming the hearing of the originating processes. As at this date, the parties agreed the hearing of the originating processes be listed not earlier than 21 August 2025.

9. On 9 July 2025, the defendants' solicitors gave notice of their intention to file winding up proceedings in not less than five business days.[12] On 14 July 2025, the plaintiffs filed an urgent interlocutory process to restrain the defendants from doing so. This interlocutory process was listed for hearing before me on the afternoon of 15 July 2025. At that hearing, senior counsel for the plaintiffs informed the court that it would not be necessary to hear the interlocutory processes or program the originating processes for an urgent hearing, because the plaintiffs intended to pay to the defendants the amounts claimed in the statutory demands on a no-admissions basis. As a consequence, the originating processes were adjourned until 18 July 2025. On that date, orders were made dismissing the application for an urgent interim injunction, reserving costs, and adjourning the originating processes until 1 August 2025.

   [12] Affidavit of Lochie Hunter Gibson filed 14 July 2025, 'LHG-02', page 9.

10. On 1 August 2025, the originating processes were dismissed, and programming orders made for the filing of affidavits and submissions on the question of costs.

What is the appropriate costs order?

1. The plaintiffs say the appropriate costs order is that there be no order as to costs. While the plaintiffs accept sealed applications to set aside the statutory demands were not served within the 21-day statutory period, they say it was reasonable for them to commence and continue with the applications to restrain the defendants from commencing winding up proceedings as an abuse of process. This is because, as early as 7 April 2025, the plaintiffs informed the defendants there was a genuine dispute over the debts and that applications would be brought to set aside the statutory demands.[13] The plaintiffs say their decision to pay the alleged debt (on a no-admissions basis) did not reflect a recognition that the defendants' arguments had merit but was done to avoid the risk that winding up applications would be filed.

   [13] Affidavit of Lochie Hunter Gibson filed 12 May 2025, 'LHG-01'.

2. The defendants submit they were the successful parties on the applications and that, consistent with the general rule, they are entitled to their costs. In their submission, each of the plaintiffs' applications was unreasonable and had no prospects of success. Reliance was placed by the defendants on the plaintiffs' agreement to dismiss each of the applications (as well as the originating processes) in support of their contention that they were the successful parties on the applications.

3. Section 37 of the Supreme Court Act 1935 (WA) confers a broad discretion on the court in respect of orders as to costs. While each of the interlocutory applications and originating processes were dismissed (as opposed to being discontinued), given that none proceeded to a final hearing, I consider the legal principles which govern the court's exercise of its discretion where a proceeding or application has been discontinued are of assistance. These legal principles can be summarised as follows:

   (a)the underlying policy of the Rules is that a discontinuing party should be liable for the other party's costs unless the court orders otherwise;[14]

   (b)the conduct of the parties and the reasons for discontinuing the case can bear heavily on the exercise of the discretion;[15]

   (c)in determining whether the costs should be borne by the discontinuing party, the court is not to try a hypothetical action between the parties;[16]

   (d)if 'it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings';[17]

   (e)however, where the discontinuance 'can be said to be an acknowledgement by an applicant of likely defeat or where no objective circumstance provides reason for the discontinuance, a costs order in favour of the other party will ordinarily be made';[18]

   (f)in some cases, the court may be able to form the view, with confidence, that although both parties had acted reasonably, one party was almost certain to have succeeded if the matter had been heard;[19]

   (g)the reasonableness of the plaintiff's conduct in commencing and discontinuing the proceedings is relevant and must be considered in the context of the policy in (a);[20] and

   (h)it is relevant to consider whether there has been a supervening act which has rendered the application futile.[21]

   [14] Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22], [39].

   [15] Clark v Richards [2003] WASC 5 [27], [78].

   [16] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J).

   [17] Ex parte Lai Qin 625; National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274 [5].

   [18] O'Neill v Mann [2000] FCA 1680 [13].

   [19] Ex parte Lai Qin 625.

   [20] Ex parte Lai Qin 625.

   [21] Kevin Ernest Judge As Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [39].

4. In this case, I accept the plaintiffs acted reasonably in commencing these proceedings. These proceedings were commenced within time. I also accept that companies, when served with a statutory demand in relation to a debt which is disputed in whole or in part, are required to commence proceedings within 21 days to prevent a presumption of insolvency and the operation of s 459S of the Act.[22]

   [22] Re Walker's Doughnuts Bendigo Pty Ltd [2025] VSC 461 [18(e)].

5. However, the issues in these proceedings arose almost immediately after their commencement due to the plaintiffs' failure to serve sealed copies of the originating processes within the 21-day statutory period. In my view, the failure of the plaintiffs to serve sealed copies of the originating processes on or before midnight on 22 April 2025 after receiving them from the court that day was not reasonable, nor was their failure to address the consequences that arose, namely that the originating processes would need to be heard and determined by 21 July 2025 if the plaintiffs wished to avoid winding up applications being filed by the defendants.

6. Similarly, while it may have been reasonable to seek restrictions on the contents or annexures to Mr Caridi's affidavit, the plaintiffs' failure to file an application under O 67B r 5(2) of the Rules within one day of the filing of the affidavit (as required by O 67A r 12(2) of the Rules) was not reasonable.

7. In this case, the originating processes were rendered futile because of the plaintiffs' decision to pay the amounts sought in the statutory demands to avoid the impacts that would arise if applications to wind up the plaintiffs were filed by the defendants. Had the timing issues been identified by the plaintiffs or addressed as at 27 June 2025 (when the issue was first brought to the attention of the plaintiffs by the defendants), it was possible that the originating processes could have been heard and determined by 21 July 2025.

8. While I accept the plaintiffs' payments were a supervening event that rendered the applications futile, I do not accept that this event was caused by the defendants.

9. In reaching my decision as to the appropriate costs order, I am not trying a hypothetical action between the parties as to whether the statutory demands should have been issued, or whether the defendants' conduct was an abuse of process. In my view, having commenced the proceedings and put the defendants to the costs of defending them, the plaintiffs should pay the defendants' costs of the originating processes.

10. For the following reasons, these costs should include the reserved costs of the applications for confidentiality orders, and the application for an interim injunction.

11. First, each of these applications were abandoned by the plaintiffs prior to final hearing on the basis that they were dismissed. The plaintiffs did not obtain any orders in the terms sought in the applications.

12. Second, in respect of the application for confidentiality orders, the affidavit which was the subject of the application was expert evidence attesting to the solvency of the plaintiffs. The application sought to restrict access to external lawyers, counsel, and third-party experts. In my view, the plaintiffs' proposal to restrict other representatives of the defendant from inspecting the affidavit was not reasonable, as it would not enable instructions to be given by the defendants to their solicitors. The plaintiffs contend they did not proceed with the hearing of this application because of the defendants' foreshadowed applications. However, if the plaintiffs had filed their application within the timeframe provided by the Rules and sought an urgent hearing, it is likely that the confidentiality application could have been heard and determined.

1. Third, the plaintiffs' conduct in filing these interlocutory applications instead of focussing on having the originating processes heard and determined prior to 21 July 2025 was, in my view, not reasonable. The requirement to hear the originating processes by this date arose from the plaintiffs' failure to serve the originating processes within time. Once this occurred, the plaintiffs should have acted to ensure the originating processes were heard and determined by 21 July 2025. Their failure to do so was, in my view, not reasonable.

Should a special costs order be made?

1. In support of the defendants' application for special costs orders, the defendants relied on an affidavit of Bethan Rachael Beck, filed 1 September 2025.

2. The defendants say that the maximum amount allowable under item 11 of the Costs Determination and item 2.5 of the CPD is inadequate, essentially because their 'costs of and incidental to defending these proceedings' greatly exceed them. They submit that the 'very late abandonment' of the plaintiffs of their applications in the proceedings, which 'could warrant' an indemnity costs order, mean that it is appropriate for special costs orders to be made. Counsel for the defendants submitted that the issues raised in these proceedings were unusually difficult, complex, or important.

3. The plaintiffs oppose the making of any special costs orders. Counsel for the plaintiffs submitted that the defendants have not adduced any evidence which would support a finding that there is a fairly arguable case that the defendants' bill of costs may tax at an amount greater than the amount allowable under the applicable costs determinations, and denied the applications were unusually difficult, complex, or important.

4. The effect of s 141(1) of the Uniform Law is to confine the costs recoverable by a successful party to the limits imposed by the relevant costs determination. As was noted by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2], in referring to the identical provision in the previous Act,[23] this provision is 'protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs'.[24] Pursuant to s 141(3) of the Uniform Law, the court has the power to make special costs orders.

   [23] Legal Profession Act 2008 (WA) s 280.

   [24] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [11].

5. In the context of an application to set aside a statutory demand, as was recently noted by Lundberg J in Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd:[25] 

   The plaintiff's application for special costs orders under s 141(3) of the Uniform Law might initially be characterised as somewhat ambitious in the context of an application to set aside a statutory demand.

   Such applications are frequently dealt with by this Court, typically by the Master, in an efficient way involving one substantive hearing and limited affidavit material. The scale amounts are usually more than adequate to allow proper recovery of a successful party's legal costs and disbursements, even where counsel is briefed on the application.

   Indeed, and to emphasise this point, proceedings to set aside a statutory demand are specifically identified within the Practice Directions as one of the 'routine matters' in which the Court can be expected to fix the costs payable to obviate the need for any costs assessment. I refer to PD 4.7.1 and the table at PD 4.7.1.1. Within that table, item 2.5 appears in the following terms:

   [25] Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd [2025] WASC 307 (S).

6. On an application for special costs orders, there are two questions for the court:

   (a)Is the maximum amount allowable under the applicable costs determination inadequate, in the sense there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amount?

   (b)Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter?

7. Each of these questions is addressed as a matter of impression, rather than matters of detailed evaluation, precision or science.[26] As Martin CJ noted in Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd, on an application for special costs under the previous legislative regime:[27]

   [O]nce an order is made for the taxation of costs, it is not appropriate for the court to usurp the function of the taxing officer. Rather, under s 280(2) of the Act, the function of the court is limited to setting the parameters within which the taxing officer will tax the relevant bill, providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. Because the quantum of costs to be allowed is to be determined by taxation, the powers conferred upon the court by s 280(2) of the Act are to be exercised as matters of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed.

   [26] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [12].

   [27] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [4].

8. In considering the first question, it is not sufficient for a party to show it has incurred costs greater than the limit in the costs determination. However, the fact that a party has incurred significantly greater costs in each step of the litigation, when viewed in the context of the unusual difficulty, complexity or importance of the matter, may enable the court to conclude there is a fairly arguable case that each of the items identified is inadequate.[28]

   [28] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [14].

9. In BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5], Archer J explained what the word 'importance' means, in the context of applications for special costs orders, as follows:[29]

   [29] BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116 [75] ‑ [79].

   Cases in which importance has been found include cases which involve the risk of significant professional damage, test cases, or cases which involve enormous sums of money.

   Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) was a case in the first category, involving serious allegations against liquidators. In Heartlink, Martin CJ said that:

   '[B]y reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issue that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.'

   This passage was endorsed by the Court of Appeal in Sino Iron [No 2].

   In Blatchford v Laine, Vaughan J commented on the passage as follows:

   'His Honour's formulation involves a qualitative evaluation as to the significance of the matter. It requires an assessment of the weight, seriousness and gravity of the issues and controversy before the court. Often the question of importance will be answered as a matter of impression informed by experience. Outside of those relatively rare cases involving matters of public importance - where 'importance' may well be obvious - the importance of the matter may be evident in the amount of the claim or the nature of the allegations that are being litigated.'

   It is plain from these authorities, and the context of s 141 and the Legal Profession Uniform Law Application Act as a whole, that a matter will not be 'important' in the required sense simply because a party considers it to be so. If it were otherwise, the test of importance would probably be satisfied in every litigated dispute.

   Further, I consider that a matter will not be 'important' in the required sense simply because the amount of money involved is large. It would depend on the circumstances.

   (footnotes omitted)

Is there a fairly arguable case that the maximum amount allowable under the Costs Determination is inadequate?

1. I have approached this question as a matter of impression rather than as a matter of detailed evaluation, precision, or science.

2. In this case, I accept it would not be appropriate to fix the costs of these applications under PD 4.7.1 as these proceedings were plainly not routine. However, this does not, by itself, support a conclusion that the maximum amount allowable under the Costs Determination is inadequate, or that these proceedings were unusually difficult, complex, or important.

3. There was no dispute that the costs of the originating processes are governed by item 11 of Table B of the Costs Determination. Under item 11(a) of the Costs Determination, the maximum amount allowable for these proceedings is $44,400. This assumes two days preparation, a one-day hearing, and 50 hours for the preparation of the case. There is a separate allowance in item 11(d) for attendance at any directions hearing.

4. Item 10 of the Costs Determination governs the costs of proceedings in chambers 'other than proceedings to which item 11 applies'. The maximum allowable for this item is $15,840, with a separate allowance in item 10(c) for consent orders of $627.

5. In my view, on any taxation of costs, costs associated with each of the confidentiality application and the application for an interim injunction do not fall within item 11 and can be claimed as separate items under item 10 of the Costs Determination. On this basis, the maximum allowable under the Costs Determination for the costs of the originating proceedings is not less than $77,334. Separate amounts can also be claimed for the directions hearings on 22 May 2025 and 1 August 2025, and possibly 18 July 2025.[30]

   [30] Part of this hearing concerned the application for an interim injunction. The remainder concerned the amendments to programming orders for the hearing of the originating process.

6. Table A of the Costs Determination sets the maximum hourly and daily rates for practitioners. Counsel's hourly and daily rates are $528 and $5,280, where counsel is not senior counsel. The hourly rate for a senior practitioner is $572, a junior practitioner (admitted for less than five years) $418, a restricted practitioner $352, and a clerk or paralegal $264.

7. The only evidence before the court is that the defendants have incurred costs of in excess of $190,000 in relation to this matter. Ms Beck's affidavit sets out the total number of hours recorded by each of the legal practitioners who worked on this matter, together with their hourly rates. Ms Beck's hourly rates are between $595 - $650, Mr Koelemij's rates are between $300 - $415, and Mr Gough's rates are between $650 ‑ $725. However, there is no evidence as to the number of years that each of these legal practitioners have been admitted, or whether they are junior or senior practitioners.

8. Ms Beck also attests to her estimate of the costs of each of the applications being:

   (a)approximate costs of $25,848 (excluding GST) for the confidentiality application;

   (b)approximate costs of $22,971 (excluding GST) for the injunction application; and

   (c)approximate costs of $141,426.35 (excluding GST) for the opposition to the originating processes to set aside the statutory demands.

9. No evidence has been adduced by the defendants as to the work that was undertaken by any of these practitioners, or how these estimates have been calculated.

10. I accept that the maximum amount that can be recovered under the Costs Determination will not enable the defendants to recover all of their costs. However, it does not follow that there is a fairly arguable case that this maximum amount is insufficient. At least some of the basis for the alleged inadequacy is the fact that the hourly rates for the defendants' solicitors exceed the maximum amounts allowable under the Costs Determination. As has been noted by the court previously, the court does not lift the limits in the Costs Determination simply because a party engages lawyers who charge at a higher rate,[31] or because the amounts incurred by the defendants exceed the maximum of relevant item of the Costs Determination.[32] Where rates are sought which are above the scale, evidence should be adduced which justifies the higher rates.[33] No such evidence has been adduced by the defendants in this case.

    [31] Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121 (S) [12].

    [32] Kahu NZ Ltd v Aviation Utilities Pty Ltd [No 4] [2024] WASC 395 (S) [10].

    [33] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [22].

11. The court file discloses that the defendants filed seven documents over the course of the proceedings (excluding those documents which are relevant only to costs):

    (a)a notice of conditional appearance and summons to dismiss the proceedings;

    (b)an affidavit of Robert Henry Masters, filed 13 May 2025, a process server who served the statutory demands on the plaintiffs (4 pages);

    (c)an affidavit of Ms Beck, filed 13 May 2025, which confirmed her instructions to Mr Masters and annexed correspondence between the solicitors for the parties (58 pages);

    (d)a second affidavit of Ms Beck, filed 30 June 2025, annexing further correspondence between the solicitors for the parties (11 pages);

    (e)an affidavit of Andrew Michael Smith, filed 17 July, annexing an independent expert report (385 pages, of which 15 pages is the expert report and the remainder annexures); and

    (f)an affidavit of Benjamin James Doolan, filed 17 July 2025, a director of the defendants attesting to the background to the statutory demands and annexing documents obtained from the website of CPA Australia (129 pages).

12. At the date the originating processes were dismissed, neither party had filed written submissions in relation to the originating processes, nor had there been any substantive or final hearings of the originating processes or interlocutory applications. The only submissions filed by the defendants were its submissions on costs.

13. In submissions, counsel for the defendants placed significant reliance on Grounded Construction Group Pty Ltd v KW Civil & Construction Pty Ltd. In that case, two separate lengthy contested hearings (excluding the arguments as to costs) occurred: one on the admissibility of evidence, and the other for the substantive hearing. This is in contrast to the present proceedings where none of the originating or interlocutory processes proceeded to a substantive or final hearing.

14. In the absence of any evidence which sets out the work that has been done in defending the claims in these proceedings or how costs of $190,000 have been incurred by the defendants' solicitors, I do not consider there is any evidentiary basis on which I could conclude that the maximum amount set out in the Costs Determination is inadequate.

Does the inadequacy arise because of the unusual difficulty, complexity, or importance of the matter?

1. I have approached this question as a matter of impression rather than as a matter of detailed evaluation, precision, or science.

2. Even if I were satisfied that there was an arguable case that the maximum amount allowable was inadequate, for the following reasons, I do not consider that any inadequacy (if there is one) arose because of the 'unusual difficulty, complexity, or importance of the matter'.

3. First, as was noted by the defendants in their submissions, the legal position in relation to many of the issues raised in these proceedings has been settled since 1995.[34] I do not consider that any novel, difficult, or legally complex issues were raised in these proceedings.

   [34] David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.

4. Second, as was noted in the exchange between counsel and the court on 22 May 2025, on an application to set aside a statutory demand, it is open to the judicial officer hearing the matter to make an order restraining the defendants from relying on the statutory demands in support of an application for the winding up of the plaintiffs. The fact that orders to this effect were sought by the plaintiffs does not, of itself, make the application unusually difficult, complex, or important; it only means the matter is not routine.

5. Third, in submissions, counsel for the defendants contended the originating processes were unusual because the plaintiffs filed evidence relevant to their solvency, which the defendants were then required to respond to. The primary difficult with this submission is that there is no evidence before me as to the work that was done by the relevant practitioners by references to the various steps in the proceedings. The court file does not provide any significant assistance in this regard. I accept that an expert was retained by the defendants, and that an affidavit was filed annexing the expert report. However, as noted by counsel for the plaintiffs, the costs of the expert can be claimed as a disbursement; these costs do not fall within the limits of item 11 of the Costs Determination.

6. Fourth, the relatively limited documents filed by the defendants in these proceedings do not support the contention the matter was unusually difficult, complex, or important.

7. Fifth, I accept that additional costs were incurred by the defendants in defending the interlocutory processes filed by the plaintiffs. However, as set out above, the costs of these applications fall within item 10 of the Costs Determination, and can be the subject of separate claims in any bill of costs.

Costs of this hearing

1. The parties have each had some success on the costs application. The defendants have succeeded in obtaining an order for their costs. The plaintiffs have succeeded in resisting the application for special costs orders.

2. In these circumstances, I consider that there should be no order as to the costs of the costs applications, including the hearing on 25 September 2025.

Conclusion and orders

1. For these reasons, I will make the following orders:

   1.The plaintiffs are to pay the defendants' costs of these proceedings, including reserved costs, to be assessed if not agreed.

   2.The defendants' application for special costs is dismissed.

   3.There be no order as to costs in relation to the applications for costs, including the hearing on 25 September 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KC

Associate to the Honourable Justice Hill

3 OCTOBER 2025