Clone Pty Ltd v Players Pty Ltd (No 15)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CLONE PTY LTD v PLAYERS PTY LTD (No 15)
[2025] SASC 173
Reasons for the Orders of the Honourable Auxiliary Associate Justice Norman
PROCEDURE- CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS- COSTS- REVIEW OF ORDER ON TAXATION
Application for review of orders awarding interest on the applicants’ costs - consideration as to the principles relating to a review of a taxation of costs - rulings on review.
Supreme Court Rules 1987 (SA) [ceased] r 101.21(2); Supreme Court Civil Rules 2006 (SA) [ceased] rr 187, 271(6), 276, 278, 279; Uniform Civil Rules 2020 (SA) rr 13.2, 195.8, 195.9, 195.10, 195.12, referred to.
Catto & Ors v Hampton Australia Ltd (In Liq) & Ors [2008] SASC 231; Clone Pty Ltd v Players Pty Ltd (No 13) [2025] SASC 49; Clone Pty Ltd v Players Pty Ltd (No 14) [2025] SASC 109; Orio Holdings Pty Ltd & Anor v Costi & Co [2008] SASC 218; Osborne v Kelly (1999) 75 SASR 392, discussed.
Australian Coal and Shale Employees’ Federations and Another v The Commonwealth and Others (1953) 94 CLR 621; Baronglow Pty Ltd v Willing and Thomas (Intervenor) DC (SA) Action No 107 of 1995, reasons published 2 October 2008 (unreported); Bennett v Seaman (1993) 117 ACTR 1; Cachia v Westpac Financial Services Ltd [2003] FCA 817; Collins v Djunaedi [2023] SASCA 97; Dalgety Aust Operations Ltd v F F Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75; Eaves v Eaves and Powell [1956] P 154; Hall v City of Burnside [2023] SASC 173; House v The King (1936) 55 CLR 499; In the Estate of Ogilvie (1910) P 243; Joseph Lahoud & Anor v Victor Lahoud & Ors [2006] NSWSC 126; Keogh v Keogh (1905) 11 ALR (CN) 38; Kuek v Devflan Pty Ltd and Anor [2009] VSC 91; Kuek v Devflan Pty Ltd & Anor [2011] VSCA 25; Kuek v Devflan Pty Ltd and Anor [2012] VSC 327; Law Society of South Australia v Jordan (1998) 198 LSJS 434; Leda v Weerden (No 3) [2006] NSWSC 220; Laurence Tai Pty Ltd v Eric & Ors v Knox and Hargraves DC (SA) Action 614 of 1993, reasons published 19 January 2000 (unreported); Malaugh Holdings (No 2) Pty Ltd v Seal & Others Anor DC (SA) Actions 1453 of 2002 and1388 of 2003, reasons published 19 August 2009 (unreported); Ocean Marine-Tech Pty ltd & Ors v BMW Australia Ltd DC (SA) Action 4017 of 1991, reasons published 14 March 2001 (unreported); Re Gibson’s Settlement Trusts, Mellors v Gibson [1981] 1 All ER 233; Re Melbourne Parking Station Ltd (1929) 34 ALR 398; Schweppes’ Ltd v Archer (1934) 51 WN (NSW) 71; Slingsby v Attorney General (1918) P 236; Spencer v GMG Legal Services Pty Ltd [2013] SASC 19; Swan v Bank of New Zealand (1890) 24 SALR 20; Clark, Tait & Co v Commissioner of Taxation (Cth) (1931) 47 CLR 142; Titan v Babic [1995] FCA 813; Western Australian Bank v Royal Insurance Co (1908) 7 CLR 385, considered.

CLONE PTY LTD v PLAYERS PTY LTD (No 15)
[2025] SASC 173
Civil: Application
Auxiliary Associate Justice Norman
Introduction

This is an application of the seventh, eighth and tenth respondents (Players) for a review of an order made on 7 July 2025 following the taxation of the costs of the applicant (Clone). Clone was awarded its costs of the trial by Vanstone J in these proceedings against Players, a determination that was confirmed by the ultimate decision of the High Court.
The taxation itself has concluded, and the only remaining issues are Clone’s claim for interest on its costs, and the costs of the taxation itself. By agreement the interest issue is being determined first.
Background
Initially, a dispute arose as to the mechanism for the determination of the interest issue, by reason of the Court having been informed that following the service of Clone’s claim for costs, Players had served three offers for those costs including interest thereon. Players had sought a two-stage process wherein a determination should first be made as to the point in time when Clone’s entitlement to interest commenced to run (stage one), and secondly, after that determination, and based on the Court’s ruling, calculations could be made as to Clone’s actual interest on its costs entitlements, relying on the amounts allowed for the three individual costs components being, solicitors’ fees, counsel fees and disbursements up to and including the date of the offers (stage two).
In Clone Pty Ltd v Players Pty Ltd (No 13)[1] dated 11 April 2025 (Reasons No 13) the Court ordered that the award and assessment of interest was to be undertaken in two separate hearings.
[1] [2025] SASC 49.
Argument on the first of those hearings was heard and in Clone Pty Ltd v Players Pty Ltd (No 14)[2] dated 7 July 2025 (Reasons No 14) orders were made in relation to stage one, awarding Clone interest on its costs. Although neither party had made submissions on the issue, the Court determined that adopting a lump sum approach was appropriate and accordingly assessed interest in a lump sum of $125,000.
[2] [2025] SASC 109.
It is that order which Players now seeks to review. They did so by way of a letter to the Court dated 18 July 2025, to which Clone responded with submissions dated 18 August 2025, with responding submissions filed by Players on 19 August 2025. Oral submissions were presented at a hearing on 19 August 2025 when Mr B Roberts KC of counsel appeared for Clone, and Mr R Whitington KC of counsel appeared for Players. I reserved my decision.
The review process
Clone lodged its long form claim for costs on 11 March 2008, and as this was a “step in the proceedings”, the applicable rules governing this taxation of costs are the Supreme Court Civil Rules 2006 (SA) (“the 2006 Rules” or “Rule”).
Rule 276 provides that if costs are taxed by a Master (which is occurring here), the Master will, in the first instance, make a provisional order for the payment of costs or any other amount found to be payable on the adjudication. This is defined as a provisional costs order.
Rule 278 provides that a party who is dissatisfied with a provisional costs order may, within 14 days after the date of the order, apply for a review of the order by a Master. An application for review must specify, in detail, the applicant’s objection to the decisions made on the adjudication. If the provisional order was made by a Master, the review will, as a general rule, be in the nature of a reconsideration by the Master who made the order. It is not disputed that as an Auxiliary Associate Justice of the Court, I am, or ought properly to be considered, to be a Master for the purposes of the 2006 Rules.
Players’ submissions on their application for a review
In their submission by way of a letter dated 18 July 2025, Players wrote that they did not challenge the decision to award Clone interest on its costs from the relevant dates of payments made by it, as had been sought by it at the hearing, those dates being reflected in Schedule 1 to Clone’s written submissions filed 2 May 2025 (“Schedule 1”). Secondly, they did not challenge the reliance upon the Schedule 1 interest calculations as accurately reflecting the relevant dates of payments made by Clone to its solicitors, nor the interest calculations based thereon. Thirdly, they did not challenge the findings that it would be appropriate to fix an interest cutoff date which was found to be a period of two months after the date of Players’ offers of 20 February 2008, being an effective interest cutoff date of 20 April 2008.
The essential basis for Players’ request for review is as follows:
·if one applies that “interest cutoff date” of 20 April 2008; and
·one then arithmetically calculates an additional two months’ worth of interest based on the second table in Clone’s Schedule 1 from 20 February 2008 to the “interest cutoff date” of 20 April 2008 one can precisely calculate that additional amount of interest; and
·that calculation results in an interest amount of approximately $11,000 less than the $125,000 lump sum interest amount the subject of the 7 July order, Reasons No 14;
·put another way, if one calculated an additional two months of interest (from 20 February 2008 to 20 April 2008) using Clone’s figures in Schedule 1, and adding that additional two months’ worth of interest to the $106,276.32 figure in Schedule 1, one would arrive at a total interest amount of $113,830.32, which is approximately $11,000 less than the $125,000 lump sum interest award.
Players’ contention is that this reduced interest figure of $113,830.32 is the precise and actual amount of interest which should be awarded to Clone based upon a calculation reflecting my reasoning (first ground of review).
A second basis to review (namely, an “objection” to the 7 July 2025 order) is that Players says that this revised / specific interest calculation should be performed in respect of each of the three individual costs components set out in Clone’s Schedule 1, being solicitors’ fees, counsel fees, and disbursements, rather than by fixing a single lump sum interest amount as per the 7 July 2025 order (second ground of review).
Players have performed this revised / specific interest calculation applying my reasoning in respect of each of those three individual costs components in Schedule 1 with a table showing what Players contend should be the correct arithmetical result, as follows:
Players had proceeded on the basis that the appropriate course in terms of a rule 278 review was for a hearing convened by the Court where both parties could make oral submissions. They requested that a hearing be fixed, and this took place on 19 August 2025.
Clone’s submissions in response
In Clone’s response dated 18 August 2025 it noted that a lump sum amount of $125,000 had been fixed in stage one to be utilised in considering the filed costs offers made by Players on 20 February 2008. It submitted that the Court had already been more than accommodating in splitting the hearing, and noted that no authority had been cited by Players mandating any particular approach concerning the issues now sought to be raised. Accordingly, it could not be said that there was a relevant error, and to the contrary it was well established that the Court had a broad discretion and could approach the determination of interest with a broad axe. The attempt by Players to further constrain that approach should be rejected.
The review application only sought to challenge two discrete aspects of the 7 July 2025 orders, the first being whether an arithmetical error had been made in fixing the lump sum interest award, and secondly whether there should have been three distinct determinations, referable to the three individual costs components, namely, solicitors’ fees, counsel fees, and disbursements rather, than the single lump sum actually fixed.
In their submissions at paragraphs 6 to 13, Clone referred to principles and caselaw. It submitted that:
·a review was a rehearing and not a hearing de novo: referring to Orio Holdings Pty Ltd & Anor v Costi & Co (“Orio Holdings v Costi”);[3]
·on review, there should be no interference with findings made unless it could be shown that the adjudicating Master had made a gross mistake, or had acted on an incorrect principle, referring to Swan v Bank of New Zealand[4], Australian Coal and Shale Employees’ Federation and Another v The Commonwealth and Others[5]; Re Melbourne Parking Station Ltd[6], Dalgety Aust Operations Ltd v F F Seeley Nominees Pty Ltd (No 2)[7], Western Australian Bank v Royal Insurance Co[8]; Clark, Tait & Co v Commissioner of Taxation (Cth)[9]; and Bennett v Seaman[10];
·as had been confirmed in Kuek v Devflan Pty Ltd and Anor[11], the appellate principles are to be applied equally to a review under rule 276;
·the overriding principle had been endorsed by the High Court in Australian Coal and Shale Employees’ Federation and Another v The Commonwealth and Others[12] citing with approval Jordan CJ in Schweppes’ Ltd v Archer[13];
·the decision of a Master is not absolutely final, even on a decision on quantum: Slingsby v Attorney General[14] and In the Estate of Ogilvie;[15] and
·the Court should also have regard to the principles set out in House v The King.[16]
[3] [2008] SASC 218 at [7].
[4] (1890) 24 SALR 20.
[5] (1953) 94 CLR 621 at 629.
[6] [1929] VLR 5, (1929) 34 ALR 398.
[7] (1988) 49 SASR 75.
[8] (1908) 7 CLR 385 at 388.
[9] (1931) 47 CLR 142 at 145-146.
[10] (1993) 117 ACTR 1.
[11] [2012] VSC 327 at [8].
[12] (1953) 94 CLR 621.
[13] (1934) 34 SR (NSW) 178, (1934) 51 WN (NSW) 71.
[14] (1918) P 236 at 239.
[15] (1910) P 243 at 245.
[16] (1936) 55 CLR 499.
I will refer to some of these authorities later in these reasons.
Addressing the first ground of review, Clone contended that Players, in seeking to impose a rigid “cutoff date” at which the interest calculation ceased, had mischaracterised the purpose and intention of the 7 July 2025 orders, and further, there was no principle involved which compelled the exercise of the discretion in that manner. In consequence there was no error alleged such as to invoke the power to set aside the 7 July 2025 orders on review. It noted that the discussion of interest cutoff dates had occurred in the context of competing “end points”. Clone had advocated for a date of 30 November 2008, or alternatively an earlier date of 20 February 2008, and in deciding which of these two was preferred, the Court had adopted a middle ground, so as to provide an allowance in favour of Clone’s primary position for considering the two offers. The two months to do so was an indicative date, rather than one adopted for the purpose of sustaining a rigid mathematical calculation. In any event, it submitted, the purpose of the 7 July 2025 orders was to fix an amount of interest which could then be notionally subtracted from Players’ costs offers, seemingly to aid those parties in foreshadowed contentions as to whether those offers had been bettered. How this might be undertaken by Players remained uncertain, but the parties necessarily had the benefit of the 7 July 2025 orders to aid them in this regard.
Clone submitted that a $125,000 lump sum award of interest to a point in time relevant to the assessment of the costs offers had been manifestly open in the exercise of the Court’s wide discretion, and to aggregate that interest amount with the costs actually awarded, enabled the comparison exercise between the interest inclusive amount awarded, and the interest-inclusive filed offers. Whether or not these offers had been bettered was now known to the parties. This was the sum total of what was required of stage one.
Moreover, Clone submitted, there could be no suggestion that the use of such a broad axe to calculate interest in a fashion that would enable the assessment of the costs offer would constrain the Court in the exercise of its discretion concerning the totality of the interest award. A lump sum award of interest in respect of the remainder of the period of more than 20 years over which Clone had been kept out of its money, remained within a broad discretion which was yet to be exercised, and mathematical precision was never required for a lump sum interest assessment – much less where this was merely a very small subset of the period over which the discretion was to be exercised.
Clone submitted that to date the Court had fixed an amount for interest for a limited purpose, namely, to allow for Players to make the submission that they chose as to the significance of the filed offers. The Court had not yet fixed an amount from which further interest was to follow in the strict sense. This final interest entitlement would be considered holistically and not on an inflexible mathematical basis from a date in 2008. This was plainly apparent from paragraph [192] of Reasons No 14. In those reasons I had observed that the task of resolving all the considerations mathematically would, as Doyle CJ observed in Osborne v Kelly[17] constitute a rather crude device, and it was undesirable that the question of interest should give rise to lengthy argument about the selection of an appropriate date. Clone submitted that to rigidly select and perform calculations to an arbitrary date, as Players was now seeking, was incorrect both in principle and inconsistent with the way in which the Court determined to exercise its discretion, which was to fix a lump sum amount for interest in a holistic manner having regard to an array of various and competing factors. Clone referred to paragraphs [194] to [205] of Reasons No 14.
[17] (1999) 75 SASR 392.
Clone argued that in determining this aspect of interest on costs the Court had determined that a lump sum process should be utilised, relying on the Full Court in Osborne v Kelly[18], which had found that adjusting the date from which interest ran could be arbitrary and contentious, and that the power to award a lump sum enabled flexibility into a process which would avoid artificial arguments over choices of dates. This was precisely what had occurred. Accordingly, there was no reasonable basis to interfere with the decision made.
[18] (1999) 75 SASR 392.
In relation to the second ground of review relied upon by Players in its application to review, Clone’s submission was that this ground involved a pure exercise of discretion and that Players had not identified or articulated any form of error – let alone a gross mistake – nor any basis to suggest that the discretion had miscarried. In fact, it argued, what was now being advanced would lead to error. It submitted that the interest cost was calculated through the means stated in Joseph Lahoud & Anor v Victor Lahoud & Ors[19](“Lahoud”). In Leda v Weerden (No 3)[20], Gzell J had also applied the calculation reasoning of Lahoud, fixing a single number to ascertain the total amount of costs and disbursements in assessing interest. Clone submitted that the analysis contended for by Players would unduly distort the lump sum interest amount fixed by the Court and that their approach would distort the conventional application of principle in a fashion designed to assist them to artificially enhance reliance upon the filed offers, which should not be countenanced.
[19] [2006] NSWSC 126.
[20] [2006] NSWSC 220.
In conclusion, Clone emphasised that Players’ submissions concerning the alleged arithmetical issue did not disclose any error in the exercise of the Court’s discretion, and that the date had been fixed in a manner the Court had deemed appropriate in its decision to adopt the lump sum method. It noted that the Court had considered a range of factors in fixing the lump sum amount, not only the issue of an interest “cutoff date”. Further, it submitted that the Court had consistently recognised the merits of the lump sum approach in assessing interest on costs, and that such a preference should be maintained as it provided consistency and efficiency, avoided unnecessary fragmentation of interest on costs awards, and prevented reliance on “crude” and superficial arithmetical arguments as to a party’s entitlement to interest on its costs. Clone submitted that such an approach was more justified in the circumstances of the complex and lengthy history of this case. It submitted that a review was only available where an error of principle or clear miscalculation or other material error had been shown, and that no proper reason for review had been advanced by Players. Further, it submitted that the review application did not identify any error committed by the Court in fixing a global lump sum figure.

It was contended that in these circumstances, little weight should be given to Players’ submission that the Court’s determination in this respect provided an additional basis to review. Clone submitted that the Court should decline to interfere with its earlier orders of the lump sum interest award as set out in Reasons No 14.
Clone sought an order for the costs of the review against Players.
Players’ responding submissions
Players’ responding submissions were filed on 19 August 2025. In relation to the first ground of review they submitted that Clone’s submissions had “missed the point”. It maintained that the complaint was not with the exercise of the discretion, or of the identification of the discretionary considerations. While the additional period of two months within which to consider the offer might have been a determination arrived at in the exercise of the discretion as to an award of interest, there was no complaint with that decision or determination. However, they emphasised, once such a determination had been made, they took objection to the consequence which followed, namely, the application of the determined and defined period to Clone’s calculation of interest based on the principal amount set out in its Schedule 1. Players contended that while there might be a further calculation of interest once the Court had had the opportunity to assess the anterior calculation against the offers made in February 2008, this was an entirely different and separate question from the calculation of the quantum of interest appropriate to be incorporated in such offers. They submitted that the date was not arbitrary as Clone had contended, rather it was a date chosen by the Court in an appropriate (unchallenged) exercise of its discretion to fix an appropriate date to allow Clone, in respect of the time necessary, to consider offers. Further, there was no challenge to the Court adopting a lump sum approach, nor to the factors relied upon by it in exercising that approach. Rather, the review expressly relied on the Court’s reliance in Reasons No 14 on Clone’s calculations. To make it clear, by reference to paragraphs [191] and [197] of those reasons, Players’ scenario C did not challenge Clone’s Schedule 1, rather it had made a calculation simply to demonstrate that necessarily (as the Court had found) Clone’s calculations in Schedule 1 had meant that not all of the costs relied upon for the purpose of interest could have been incurred prior to the date of the costs order of 18 August 2005. This had no bearing upon the Court’s analysis at paragraphs [195] to [203], and the impact of the Court’s acceptance of Schedule 1 in an interest calculation.
In relation to the second ground of review, Players submitted that again, Clone’s submissions suffered from the same misconception as to the nature of the review process. In any event, the second ground of review simply built upon the findings in the reasons which proceeded from the basis of three individual costs components. Not only was there nothing inconsistent with the authorities relied on by Clone in invoking that approach, but that approach was the very premise of the Court’s decision in it Reasons No 13 at paragraph [3]. Players contended that there was no basis in law, principle or the rules dealing with awards of interest on costs to contest the second ground of review. It was notable that the Court had explained its adoption of the two stage process in its Reasons No 13 at paragraph [63] on the basis that once it had made its determination on the issues as to how much interest was allowable up to the date of the offers, unfettered by any knowledge of what had been offered, then it could proceed following the disclosure of the offers and their effect to a consideration or determination as to whether Players had relevantly beaten any of their offers, or not, as the case might be, and the consequences of this. This, they submitted, had come to be reflected in the orders in Reasons No 13 at paragraph [67] order 1(b). Players submitted that there is no basis to either reject or dismiss either ground of review sought, and both were consistent with the reasons of the Court and the terms of the relevant rules.
Oral submissions of the parties
Players’ oral submissions
In his submissions Mr Whitington referred to Reasons No 13 wherein bifurcation of the interest argument was ordered having regard to the existence of the three offers and their separate relevance.
In relation to the first ground of review, he referred to the question of the determination of the relevant interest calculus, namely, the integers.
In Reasons No 14, which had determined that interest was to be allowed for the period between the date of Vanstone J’s costs order and the Players’ offer of 20 February 2008, it was ultimately decided that Clone be allowed a reasonable time between 20 February 2008 (being the date of the costs offers, at the earliest) and 30 November 2008 (being the date of their lapsing pursuant to the rules, at the latest) to consider and respond to the costs offers. That finding, at paragraph [200] of Reasons No 14, was that a period of two months would be reasonable, thereby extending the date to 20 April 2008 for Clone to respond to that offer.
A further integer in the interest calculation comprised those amounts determined on taxation as set out in Clone’s Schedule 1, appearing at paragraph [29] in Reasons No 14. Schedule 1 comprised two tables, one setting out calculations made to 30 November 2008, and the other to 20 February 2008. Each table contained a middle column identifying the principal amounts, with the right-hand column reflecting the corresponding interest calculations. Mr Whitington contended that the Court had relied on Clone’s calculations in paragraph [203] of Reasons No 14, being Schedule 1.
The starting point was an assumed date of payment on the date of the costs order being 18 August 2005. Mr Whitington reminded the Court, however, that Players had produced a scenario C (which was referred to in several places in Reasons No 14). This showed that using Clone’s calculations of interest, based upon its asserted actual incurral of expenditure, some part of that expenditure must have occurred after 18 August 2005. For present purposes, Players accepted Clone’s Schedule 1 calculations and did not seek to challenge these. Further, the interest calculations for the purpose of Schedule 1 set out in paragraph [29] of Reasons No 14 were Clone’s calculations, and these were not disputed or sought by Clone to be amended.
Mr Whitington then addressed the Court’s powers on review. The effect of the relevant 2006 Rules was that they necessarily implied that a provisional costs order was provisional or interim only, and not final. Further, a reconsideration was not the same as an appeal. A provisional costs order was not one able to be entered up. An order would be made but for a review application, but if the review application was not made, then there could be no further review by a higher judicial officer – although there might be a right of appeal. It was for this reason that Players was seeking a review at this stage. Clone’s submission that a review had to meet a test of error, as on an appeal, was disputed. The caselaw indicated that a review process was not equivalent to an appeal, or a second appeal. The cases cited by Clone all relied either on an appeal procedure or a second review procedure, and none of them touched on a stage one review process of the kind now being dealt with.
The ultimate test for the Court was that set out in rule 278(3) which referred to the term “reconsideration”. The process was not, it was emphasised, equivalent to an appeal. Instead, it was a request to the Court to review what had been done in the light of an arithmetical calculation as had been undertaken by Players in their application.
Addressing the second ground of review, Mr Whitington referred to paragraphs [197], and following, of Reasons No 14. Noting that the Court had accepted Clone’s submission that interest could be backdated to the dates when payments were made, he said the Court had also addressed a second factor, namely, relating to offers and their acceptance (which was also not disputed), and a third factor, which Players also accepted, that any delays by Clone in the taxation process would not be held against it. Likewise, Players accepted the finding of a fourth factor, namely that costs offers were relevant to an award of interest on costs incurred. The fifth factor, referred to in paragraph [203] of Reasons No 14, was the starting point. The Court had observed that there had been a suggestion by Players in their scenario C that the Court might look to some other and later starting point than 18 August 2005. However, Players were content to accept Clone’s starting point in its Schedule 1 calculations as being on 18 August 2005 even if this was to its disadvantage.
The short point, Mr Whitington submitted, was that if any slippage were to be built in, this should be in favour of a reduction of the claimed calculations, but Players did not urge a finding of any slippage and accepted Clone’s starting point.
Then, he submitted, applying these integers into the calculation of interest, this allowed a simple calculation on Clone’s Schedule 1 figures by adding two months interest from 20 February to 20 April (referred to in paragraph [29] of Reasons No 14), wherein Clone itself had calculated interest of $106,276.32 to 20 February 2008, and interest to 30 November 2008 of $142,000.01.
What Players was seeking, as was demonstrated by its letter pursuing a review, was to simply take the difference in interest between these two figures, and these two dates, to calculate the number of days in between, and to divide up the differential interest per day, as had appeared on page 4 of Players’ letter. The result was an additional 60 days of extra interest up and until 20 April 2008 amounting to $7,554. There was a slight quirk in that calculation, favourable to Clone, in that a better daily rate of interest had been taken. In Clone’s table, from 1 October 2008 interest had increased from 6.5 per cent to 10 per cent. Players’ calculation, which was only for the early part of that period up to 20 April 2008, was for a period at which the rate of 6.5 per cent prevailed, but nevertheless it calculated a daily rate spread over the whole period. That daily rate was in effect a weighted daily interest amount, which favoured Clone by factoring in 60 or 61 days at the end of the period of 10 per cent, but this did not trouble Players. If one added $7,554 to Clone’s figure appearing in paragraph [29] of Reasons No 14 being $106,276.32, a total of $113,830.32 would be arrived at, in contrast to the lump sum figure awarded in Reasons No 14 of $125,000.
What Players was suggesting to the Court for review was that taking an arithmetical approach based on Clone’s figures, and the Court’s findings concerning the appropriate figure and end date, was a preferable approach to a rounder lump sum figure. This was not intended to be a criticism of the Court for not engaging in the discrete daily calculation exercise, however once that calculation was undertaken, the ultimate figure would be a little over $11,000 lower. While proceeding to move to offers where it might turn out that precise figures mattered, this was important.
Clone’s oral submissions
Mr Roberts submitted that the present debate arose from the unusual circumstances of the bifurcation of the interest assessment process, which had become necessary due to Players’ approach to the treatment of their offers. While it was now said that the costs order was provisional only, it was not entirely evident from Reasons No 13 that the Court was determining a sum that would be capable of perfection by a way of an order under rule 279.
If it were the case that Players were proceeding on the basis that it was a provisional costs order capable of being perfected either as is, or in consequence of any variation to that order that the Court might make, the matter could proceed accordingly.
Mr Roberts referred to Catto & Ors v Hampton Australia Ltd (In Liq) & Ors (“Catto v Hampton”)[21] which dealt with a rule 278 review. The Full Court had observed there that as the matter related to a question of principle; it would have been better dealt with by way of an appeal rather than a review. What had occurred was that a Master had determined a question of principle based on some exampled cases, but had deferred from either determining a review from himself, or proceeding to a single judge review, and had instead referred the matter directly to the Full Court, without a request from the parties. The Full Court was critical of this approach. In its reasons at paragraph [27], it had discussed the differing functions of a review and an appeal. It had held in that paragraph that rule 278 was inappropriate as a means of review of the issues in dispute between the parties, and that the review process was best adapted to a review of decisions concerning the actual quantification of claimed costs, and to the correction of mistakes, errors or oversights which had occurred in the detailed adjudication process. This explained why the rule contemplated, rather unusually, a first stage review by the original decision-maker. The process was not well adapted to the review of decisions on issues of principle decided under rule 271(6).
[21] [2008] SASC 231.
This explained why rule 278 contemplated a two-stage review exercise. A review was not, in his submission, simply a basis for returning to the relevant adjudicating officer seeking in effect another attempt on the taxation, and there were many reasons why the Court should not construe a review exercise as simply being a “second bite”. Players’ first ground of review did not identify any relevant error in the exercise of the discretion, rather it simply advanced fresh submissions that they might have advanced the first time around. Such a process would be outside of the ambit of the review exercise as described in Catto v Hampton, even if the Court acceded to the submission that there was a second stage of review.
The Schedule C issue, addressing the date of payment compared with the date of order and the notion that there was slippage, could be answered by referring to the affidavit of Clone’s solicitor, Mr Hamilton, FDN 346, which established that in relation to solicitors’ fees, although there had been substantial fees incurred and paid after the date of the costs order, these were nevertheless trial costs. This was evident from the bills rendered report annexed to his affidavit. Accordingly, when the illustrative exercise of identification of the judgment sum as being a relevant measure for payments was identified, it did have the effect that it was lower (but only marginally lower) than by using the actual dates of payments. This was because those dates were before the August 2005 date. However, in relation to solicitors' fees, also after August 2005, in consequence when there was the application of a single date, it was something of a midpoint relevantly, and this was why there was no slippage or error as has been described by Players.
In any event, this was not a matter arising on review.
Mr Roberts identified the way the Court’s discretion had been exercised in fixing a lump sum as set out in its Reasons No 14. The Court had observed at paragraphs [109] and [110] that there was a broad discretion to be exercised; at paragraph [130] it had noted both the undesirability of lengthy argument, and the recognition that the process was something of a crude device, and at paragraphs [174] to [175] it had observed that offers under the rules contemplated a flexible period within which they might be assessed. Applying these principles at paragraphs [190] to [192] and [195], the Court had indicated that a lump sum assessment would be adopted to avoid lengthy argument about the selection of dates. At paragraphs [199] to [200], which involved the fixing of a date up until which the relevant assessment was to be calculated, it had rejected Clone’s proposition that it was appropriate to calculate up to two days before the hearing. It had also rejected the proposition from Players that Clone would be denied a reasonable time within which to consider the offer. Accordingly, it had proceeded on the basis that it would be somewhere between 20 February 2008 and 30 November 2008 that the reasonableness of the offer, where interest was effectively continuing to run in the meantime, would be assessed.
Players had fastened upon the reference to two months as being a reasonable period. However, it was evident from the Court’s approach at paragraphs at [199] to [200] and [205] that it was considering a point between February and November, rejecting each of the parties’ submissions, and coming up with a date somewhere in the middle, which was part of its broad discretion, well open to it, and which should not now sound in the style of interest calculation set out by Players at paragraph 9.4 and 9.5 of their review application.
Such an exercise would apply a mathematical result to what the Court had expressly said was not to be the approach. Instead, it should use a broad axe to adopt a lump sum to avoid the very style of arguments presently advanced by Players. It was not relevant to contend before the Court now that there should be a precise arithmetic approach to the end date, when the Court had already proceeded otherwise with the exercise of its discretion.
In relation to Players’ second ground of review, Mr Roberts submitted, they had not advanced precise submissions as to allocations being made between the three individual costs components of solicitors’ fees, counsel fees, and disbursements, so the Court should not now make these awards pre-dating the adjudication certificate and then going back and undertaking a fresh calculation. In Clone’s submission, this was not within the ambit of error or oversight. Rather Players was simply having another go at the matters, which should be deterred rather than encouraged.
In Clone’s submission, what was contemplated in the Reasons No 13 was that a single calculation was to be made based upon each of the three individual costs components, namely, solicitors’ fees, counsel fees, and disbursements. It was not contemplated that the Court was to be required to go through an independent mathematical exercise of fixing precise numbers to each of these three components. The endeavours of Players to deconstruct the lump sum order was inimical to the process of a lump sum exercise.
Finally, there was something of an approbation and reprobation by Players on the notion of the offers being confidential. Players had contended that nothing could be said about them because rule 187 contemplated that they be contained in a sealed envelope and not opened, yet they were now saying effectively that there were three individual costs components, so they needed to be broken down. There should be no warrant for now allowing Players the broad exercise of coming back and requiring this to be done again. Players could make whatever submissions they wished of their own arithmetic calculations by breaking down matters for the purpose of addressing submissions as to the significance of offers, but this was a different thing from now requiring the exercise of Court in entering a fresh provisional costs order that might restart the whole exercise of review.
Players’ oral submission in reply
Mr Whitington referred to the observations of White J at paragraph [27] of Catto v Hampton[22], saying that this was an illustration or exemplification of a Court’s function in the review process. By no means an exhaustive definition, it did not preclude the Court from taking the steps that Players now urged it to do. An adjudication of costs could include an adjudication of interest, and this was precisely what the Court had done here, even though it had only reached a certain point. It might be the only adjudication of interest, or there might be more to come, but the point was that it was an adjudication of interest on costs, and if Players did not exercise their review rights at this stage they would be shut out. The broad discretion referred to at paragraphs [109] to [110] in Reasons No 14 was beside the point. Players did not challenge that the Court had a broad discretion, and they agreed that it had identified factors relevant to that discretion quite correctly.
[22] Catto & Ors v Hampton Australia Ltd (In Liq) & Ors [2008] SASC 231 at [27].

The point, however, of the present debate was that once the exercise moved past the identification of the broad discretion, of the factors or integers relevant to that exercise, and then went to the stage of the actual exercise, the Court was now approaching the application of the discretion as opposed to its identification. The review the subject of the present application was based upon an acceptance of that discretion, however involving a challenge to the application of the findings the Court had made, as opposed to the discretionary integers.
In relation to the second ground of review, Mr Whitington submitted that if the reconsideration was deferred then Players would be shut out, with no right of a second review or an appeal, in relation to this particular award of interest or a component of an award of interest. Noting that Clone had submitted that it was wrong to suggest that Reasons No 13 ordained or even contemplated three calculations, Mr Whitington contended that this was not so at all - the very premise for the bifurcation of the interest argument was that there were offers, and as had been noted there were three individual costs components. Against this, Clone had submitted that Players were approbating and reprobating, but Mr Whitington maintained there was no inconsistency in what Players was doing. Players were not seeking to rely on the fact of offers and then saying that the offers were confidential - this point was at the heart of Reasons No 13, which was the Court’s acceptance for the proposition that the offers should not be disclosed until after the issue of assessing interest had been completed. Accordingly, there was nothing inconsistent with the approach, and indeed this appeared from that decision, relying on the proposition that there had been offers, that three of them were discretely applicable to three individual costs components, and that for the time being the terms of those offers must remain confidential. Accordingly, there was nothing in Clone’s point about approbation and reprobation.
In summary, Players’ submission was that the effect of the 2006 Rules was that they necessarily implied that a provisional costs order was provisional or interim only, and not final. Further, a reconsideration was not the same as an appeal - a provisional costs order was not one able to be entered up. The ultimate test for the Court was that set out in rule 278(3) which referred to the term “reconsideration”. The process was not, as had been emphasised, equivalent to an appeal. In this instance, the review was a request by Players to the Court to reconsider what has been done in the light of the arithmetical calculation set out in its submissions.
Principles as to the review process
Rule 276 provides that if costs are adjudicated by a Master, then the Master will in the first instance make a provisional order for the payment of costs or any other amount found to be payable on the adjudication, which is defined as a provisional costs order.
It has been agreed that for the purposes of the 2006 Rules I am to be treated as a Master.
The order made by the Court on 7 July 2025, which is the subject of the application to review, awarded to Clone the sum of $125,000 on account of interest.
Rule 278 provides that a party who is dissatisfied with a provisional costs order may apply for a review of that order by a Master, which generally should be in the nature of a reconsideration by the Master who made the order in the first place.
Rule 278(2) provides that the application for review must specify in detail the applicant’s objection to the decisions made on the adjudication. This has been done by Players way of a letter to the Court seeking the review.
Rule 278(4) provides for the Court’s powers on review, which include confirming the provisional costs order and ordering that it be entered in the Court’s record as a judgment of the Court, or alternatively varying the provisional costs order as may be appropriate in the circumstances and ordering that it be entered in the Court’s record as a judgment of the Court. The wording of rule 278 suggests that it applies to general as well as special objections to items - it refers to “the applicant’s objections to the decisions made on the adjudication”.
Rule 278 contemplates that a judge will conduct a review only after the provisional costs order has been entered in the court’s record as a judgment of the court.
The review process was considered by the Full Court (White J, with whom Vanstone and Anderson JJ agreed) in Catto v Hampton.[23] In paragraph [21], White J wrote that it was doubtful that a dispensation of a review by a Master in the process could be made. That was because completion of the first stage review was a necessary step before a dissatisfied party could apply for a review by a judge. Put slightly differently, what the 2006 rules contemplated was a single judge reviewing the order or decision made on review by the Master. If that review was dispensed with, then there was no order or decision which may be reviewed by a judge. At paragraph [27], White J wrote that the review process was best adapted to a review of decisions concerning the actual quantification of claimed costs. It was adapted to the correction of mistakes, errors or oversights which had occurred in the detailed adjudication process.
[23] [2008] SASC 231.
Although during a taxation it is often not the practice of the taxing officer[24] to give reasons, on a review reasons should be given by the taxing officer on all of the grounds of objection, as there is an appeal from a judgment or order on the taxation: Eaves v Eaves and Powell[25]; Re Gibson’s Settlement Trusts,Mellors v Gibson[26]; and Titan v Babic.[27]
[24] For the purposes of this judgment, “Taxing Officer” is to be understood as referring to a Master.
[25] [1956] P 154.
[26] [1981] 1 All ER 233 at 243
[27] [1995] FCA 813.
The review process has been continued under the Uniform Civil Rules 2020 (“UCR”), with some modifications. UCR 195.12 provides that if the taxing officer makes a provisional order under UCR 195.10(1), the claimant or liable party may within 14 days after the date of the order request a review of the provisional order by filing and serving an application to the Registrar in accordance with UCR 13.2(5). If neither party requests a review within 14 days after the date of the order, it becomes a non-provisional order as if it had been made under UCR 195.10(2). If either party requests a review within 14 days after the date of the order, the Registrar will convene a hearing and give notice of the hearing to the parties in the prescribed form, and the hearing will be conducted, if the order was made by a taxing officer other than a Registrar or Judicial Registrar, (generally) , by the same taxing officer who made the order. A taxing officer conducting a review under this rule will reconsider the provisional order the subject of the review and may exercise any of the powers identified in UCR 195.8 and proceed in any manner identified in UCR 195.9. A taxing officer conducting a review under the rule may confirm or vary the provisional order, which (as varied, when applicable) then becomes a non-provisional order as if it had been made under UCR 195.10(2).
Catto v Hampton was considered and followed in the context of UCR 195.12 in Hall v City of Burnside[28] where Judge Dart at [18]– [23] observed that a review was an unusual process which could also lead to a reconsideration of an issue. The process was long standing. However, where there were competing contentions of substance put forward by the parties, the court would usually prefer one to the other. In that situation an appeal worked better. There was a right of appeal, and in light of the Court of Appeal decision in Collins v Djunaedi[29] it was likely that leave to appeal would be required. Upon considering the review in Hall v City of Burnside, Judge Dart held at [31] – [43] that the applicants had not satisfied the Court that it was appropriate to change the outcome of the lump sum assessment he had undertaken, and refused the application for a review.
[28] [2023] SASC 173.
[29] [2023] SASCA 97.
Although this does not appear in the 2006 Rules, the court may adopt the practice that when an application is made to review an adjudication, the Master may receive further evidence, state reasons, and allow costs of the objection on order to properly undertake the review.
On a review the Master has power to change any rulings made during the adjudication as is seen fit until there is a final ruling on the objections: Keogh v Keogh[30].
[30] (1905) 26 ALT 202, (1905) 11 ALR (CN) 38.
In Spencer v GMG Legal Services Pty Ltd[31] Stanley J (as he then was) referring at [8] to the requirement for an application for a review of the order by a Master, found that it was only thereafter that the further right of review by a judge was satisfied.
[31] [2013] SASC 19.
Players submit that if they are not to now seek a review of the order I made in paragraph 208 on 7 July 2025, they will be shut out from seeking a further review by a judge. This would appear to be the case, and was the reason for the present hearing being fixed.
A review by a judge of a Master’s order on a taxation is in the nature of a rehearing on the papers and not a hearing de novo: Orio Holdings v Costi[32] Vanstone J at [7], referring to Doyle CJ in Law Society of South Australia v Jordan[33] in relation to the forerunner of rule 278, being rule 101.21(2) Supreme Court Rules 1987, and noting that the approach taken in Jordan corresponded to the position under the Federal Court and High Court Rules: Cachia v Westpac Financial Services Ltd[34]; Australian Coal and Shale Employees’ Federation v Commonwealth.[35]
[32] [2008] SASC 218.
[33] (1998) 198 LSJS 434.
[34] [2003] FCA 817.
[35] (1953) 94 CLR 621.
Clone has submitted that on a review by a Master there should be no interference with findings made unless it was shown that the adjudicating Master has made a gross mistake, referring to Swan v Bank of New Zealand[36]; Australian Coal and Shale Employees’ Federation v Commonwealth[37] (applied in Kuek v Devflan Pty Ltd and Anor [2009] VSC 91, overturned on appeal [2011] VSCA 25 but on other grounds); Re Melbourne Parking Station Ltd[38]; and Dalgety Australian Operations Ltd v F F Seeley Nominees Pty Ltd (No 2)[39].
[36] [1890] 24 SALR 20.
[37] (1953) 94 CLR 621 at 629.
[38] [1929] VLR 5,(1929) 34 ALR 398.
[39] (1988) 49 SASR 75.
However, it appears on a reading of the above cases that these were authorities relating to an appeal procedure or a second review procedure treated as analogous to an appeal procedure, and they did not concern a stage one reconsideration procedure of the kind dealt with here.
A first instance review by a Master does not require an applicant to establish a gross mistake, rather a mere factual, legal or discretionary error is sufficient. The bar is accordingly lower than that required for a second stage review or an appeal.
It is important to note that while an appeal is said to be a rehearing (see rule 286) a review of a provisional costs order under rule 278 (applicable here) is not treated as an appellate proceeding and the rule expressly provides that the review is to be a reconsideration (emphasis added) by the Master who made the order.
Further, a reading of the well-known passage of Kitto J from Australian Coal and Shale Employees’ Federation v Commonwealth[40] quoting from the dictum of Jordan CJ in Schweppes’ Ltd v Archer[41] establishes that among other things, it is necessary to distinguish between a mere question of quantum (which can be corrected if the taxing officer has clearly made a mistake), and issues of principle and other issues going to a proper exercise of the discretion.
[40] (1953) 94 CLR 621 at 628.
[41] (1934) 34 SR (NSW) 178, (1934) 51 WN (NSW) 71.
Clone has submitted that a House v The King[42] error must be demonstrated. However, as noted above, what is relevant here are the terms of rule 278(3) providing that the review is “in the nature of a reconsideration”. Accordingly, concepts of “interference” and the need for a “gross mistake’ are not relevant to the application of those principles.
[42] (1936) 55 CLR 499.
Principles relating to interest on costs
In Reasons No 14 at paragraphs [97] to [137] and [138] to [151], I discussed in detail the principles relating to awards of interest on costs and the relevant considerations. Without going into that degree of detail again here, I had regard to the observations made in Osborne v Kelly[43] concerning the broad discretion of the Court in awarding interest on costs, and particularly the utility of assessing interest as a lump sum. I refer to paragraph [130] of my reasons, referring to Osborne v Kelly[44] where the learned Chief Justice observed that adjusting the date from which interest was to run would, in many circumstances, be a rather crude device and that it was undesirable that the question of interest should give rise to a lengthy argument about the selection of a date which would fairly compensate a plaintiff and an award of a lump sum would inject some flexibility into the process which would avoid artificial arguments over the choice of a date.
[43] (1999) 75 SASR 392.
[44] (1999) 75 SASR 392 at 68.
Similar observations were made in Lahoud[45]. Campbell J at [85] adopted a pragmatic approach to the calculation of interest as follows:
In all the circumstances, the appropriate way of calculating interest on costs is to ascertain the total of the amounts which the plaintiffs have paid and are liable to pay for costs and disbursements, ascertain the total amount of costs and disbursements allowed on assessment, calculate the percentage which the total amount allowed on assessment bears to the total costs and disbursements which the plaintiffs have paid or are liable to pay, and allow the plaintiffs interest on that percentage of each payment which they have made from time to time on account of costs and disbursements.
[45] (2006) NSWSC 126.
This approach was adopted and followed by Gzell J in Leda v Weerden (No 3)[46]. It also carries the authority of the Full Court in Osborne v Kelly[47].
[46] [2006] NSWSC 220 at [18] to [23].
[47] (1999) 75 SASR 392.
I also examined legislation, rules and caselaw, and the principles relating to the assessment of interest on costs. These cases included the decision at first instance in Malaugh Holdings (No 2) Pty Ltd v Seal & Anor DC (SA)[48] where I referred to earlier decisions awarding interest on costs based on the dates of payments by the claiming party, including my decisions in Laurence Tai Pty Ltd v Eric & Ors v Knox and Hargraves DC (SA),[49] Ocean Marine-Tech Pty Ltd & Ors v BMW Australia Ltd DC(SA)[50] and Baronglow Pty Ltd v Willing and Thomas (Intervenor) DC(SA).[51] In those cases, factors considered effecting the award of interest on costs included the extent of the costs claim, payments made by the claiming party to its solicitors on account of costs and the dates thereof, whether or not there had been delays in the process of adjudication of costs, any unreasonable approaches to the adjudication of costs, the presence or absence of offers as to costs, and the issue of whether there had been considerable reductions from the amounts claimed for costs. Rounded lump sum interest amounts were awarded in at least two of these cases.
[48] Actions 1453 of 2002 and1388 of 2003, reasons published 19 August 2009 (unreported).
[49] Action 614 of 1993, reasons published 19 January 2000 (unreported).
[50] Action 4017 of 1991, reasons published 14 March 2001 (unreported).
[51] Action No 107 of 1995, reasons published 2 October 2008 (unreported).
In Reasons No 14, the subject of the present review, at paragraphs [87] to [151] and further at [152] to [207], I took into account five factors in fixing a global sum, the first being that it would be appropriate that Clone be awarded interest on its costs to be backdated to the times when it paid monies on account for solicitors’ fees, counsel fees and disbursements; the second being a fixing of a date until which interest was to be calculated; the third being whether the conduct of Clone in and about its delay in the submission of its costs claim to Players should result in a diminution of its interest entitlement; the fourth being the relevance of costs offers, and the importance of allowing paying parties the opportunity to exercise their rights under the rules to make costs offers after being properly informed as to the costs claim and its quantification, and the fifth (being a supplement to the first) the dates upon which the paying party actually made payments to its solicitors.
The difficulties and intricacies of attempting to reconcile these considerations, even if some were capable of mathematical calculation (the others not) was such that in accordance the observations of the Full Court with Osborne v Kelly[52], I fixed a global lump sum.
Consideration
[52] (1999) 75 SASR 392.
First Ground of Review
Players’ do not complain as to the exercise of the Court’s discretion or to the identification of the discretionary considerations, nor as to the allowance in Reasons No 14 of an additional period of two months within which for Clone to consider the offers made by Players. Further, there is no challenge to the Court adopting a lump sum approach, nor to the factors relied upon by it in exercising that approach.
Rather, the essence of Players’ complaint is in the consequence which follows, namely, the application of a determined and defined period to Clone’s calculation of interest based on the principal amount set out in its Schedule 1. The Court in Reasons No 14 decided that Clone be allowed a reasonable time to consider and respond to any offer between 20 February 2008 and 30 November 2008, its finding being that two months would be a reasonable time, which took the date to 20 April 2008 for Clone to respond to that offer. Schedule 1 comprised two tables, one setting out calculations made to 30 November 2008, and the other to 20 February 2008. Each table contained a middle column identifying the principal amounts, with the right-hand column reflecting the corresponding interest calculations. The starting point was an assumed date of payment on the date of the costs order being 18 August 2005. However, Players’ scenario C showed that using Clone’s calculations of interest, based upon its asserted actual incurral of expenditure, some part of that expenditure must have occurred after 18 August 2005. They contend that if one calculates an additional two months of interest (from 20 February 2008 to 20 April 2008) using Clone’s figures in Schedule 1, and add that additional two months’ worth of interest to the $106,276.32 figure in Schedule 1, one will arrive at a total interest amount of $113,830.32, which is approximately $11,000 less than the $125,000 lump sum interest awarded. This reduced interest figure of $113,830.32 is accordingly the precise and actual amount of interest which should be awarded to Clone based upon a calculation reflecting the reasoning, in lieu of the $125,000 awarded.
However, in response Clone contends that Players in seeking to impose a rigid “cutoff date” at which the interest calculation ceased, have mischaracterised the purpose and intention of the 7 July 2025 orders, and further, it says that there was no principle involved which compelled the exercise of the discretion in that manner. Accordingly, no error had been alleged such as to invoke the power to set aside the 7 July 2025 orders on review.
I note that the discussion of interest cutoff dates had occurred in the context of competing “end points.” Clone advocated for a date of 30 November 2008, or alternatively an earlier date of 20 February 2008. In deciding which of these two was to be preferred, I adopted a middle ground, providing to Clone an allowance in favour of its primary position for considering the offers. The intention of a two-month period was an indicative date, rather than one adopted for the purpose of sustaining a rigid mathematical calculation.

I formed the view, which I retain for the purposes of this review, that the final interest entitlement should be considered holistically. I refer to paragraph [192] of Reasons No 14, where I observed that the task of resolving all the considerations mathematically would, as Doyle CJ observed in Osborne v Kelly[53] constitute a rather crude device, and that it was undesirable that the question of interest should give rise to lengthy argument about the selection of an appropriate date. To select and perform calculations to an arbitrary date, as Players seek on the review, would be inconsistent with the manner in which the Court previously exercised its discretion, namely in fixing a lump sum amount for interest having regard to an array of various and competing factors, such as the conduct of Clone in and about its delay in the submission of its costs claim to Players, the relevance of costs offers, and the importance of allowing paying parties the opportunity to exercise their rights under the rules to make costs offers after being properly informed as to the costs claim and its quantification, which would be impossible to assess with any mathematical precision.
[53] (1999) 75 SASR 392.
As the Full Court emphasised in Osmond v Kelly[54], and as was observed in both Lahoud[55] and Leda v Weerden (No 3)[56], the power to award a lump sum enables flexibility into a process and avoids complex arguments over dates and events, unnecessary fragmentation of interest on costs awards, and crude and superficial arithmetical arguments as to a party’s entitlement to interest on its costs.
[54] (1999) 75 SASR 392.
[55] [2006] NSWSC 126.
[56] [2006] NSWSC 220.
A further reason advanced by Clone not to depart from a lump sum assessment of Clone’s interest entitlement was by having reference to the affidavit of its solicitor, Mr Hamilton, FDN 346. This testified that although substantial fees had been paid after the date of the costs order, these were nevertheless trial costs. This was evident from the bills rendered report annexed to his affidavit. In relation to solicitors' fees after August 2005, the application of a single date was something of a midpoint, and this was why Clone contended that there was no slippage or error as had been described by Players.
The Court expressly used a broad axe to adopt a lump sum in order to avoid the style of arguments now advanced by Players. To repeat the observations in Osborne v Kelly, adjusting a date from which interest is to run will in many circumstances be a rather crude device and it was undesirable that the question of interest should give rise to a lengthy argument about the selection of a date which would fairly compensate a costs recipient when an award of a lump sum would inject some flexibility into the process which would avoid artificial arguments over the choice of a date.
I accordingly decline on Players’ first ground of review to amend the global figure fixed for interest on Clone’s costs, although this will be subject to the issues raised in the second ground of review.
Second Ground of Review
This ground seeks that in lieu of fixing a single lump sum interest award as made in the 7 July 2025 orders, the Court should instead assess individual interest amounts to reflect the three offers made by Players, namely for solicitors’ fees, counsel fees, and disbursements.
Players submitted that it was notable that the Court explained its adoption of the two stage process in its Reasons No 13 at paragraph [63] on the basis that once it had made its determination on the issues as to how much interest was allowable up to the date of the offers, unfettered by any knowledge of what had been offered, then it could proceed following the disclosure of the offers and their effect to a consideration or determination as to whether Players had relevantly beaten any of their offers, or not, as the case might be, and the consequences of this. This had come to be reflected in the orders in Reasons No 13 at paragraph [67] order 1(b).
In any event, Players said, the second ground of review simply built upon the findings in the reasons which proceeded from the basis of three individual costs components. Not only was there nothing inconsistent with the authorities relied on by Clone in invoking that approach, but that approach was the very premise of the Court’s decision in its Reasons No 13 at paragraph [3]. Players contended that there was no basis in law, principle or the rules dealing with awards of interest on costs to contest the second ground of review.
This Ground was also opposed by Clone, which contended that a fresh calculation was inappropriate and that it did not come within the ambit of error or oversight. Rather, it argued, Players was simply having another attempt at the matter. What had occurred was that a single calculation was made based upon the collective of each of solicitors’ fees, counsel fees, and disbursements, and it was not contemplated that the Court was required to go through an independent mathematical exercise of fixing precise numbers to each of these three components. Clone submitted that Players were approbating and reprobating, but Players responded there was no inconsistency in what they were doing. They were not seeking to rely on the fact of offers and then saying that the offers were confidential - this point was at the heart of Reasons No 13, which was the Court’s acceptance for the proposition that the offers should not be disclosed until after the issue of assessing costs had been completed. Accordingly, there was nothing inconsistent with the approach, and indeed this appeared from that decision, relying on the proposition that there were offers and that three of them were discretely applicable to three individual costs components, and relying on the proposition that for the time being the terms of those offers must remain confidential. Accordingly, there was nothing in Clone’s point about approbation and reprobation.
In my view there is merit in this ground of review. Order 1(a) made in Reasons No 13 provided that the award and assessment of interest on Clone’s costs was to be undertaken in two separate hearings, the first being a determination as to the point in time when Clone’s entitlement to interest was to run and after that determination, and based on the Court’s answer, a calculation made as to Clone’s actual interest on its costs entitlement calculated on the amounts allowed for solicitor’s fees, counsel fees and disbursements, up to and including the date of Players’ offers dated 20 February 2008 (emphasis added).
The very premise for the bifurcation of the interest argument was that there were three offers, relating to solicitors’ fees, counsel fees, and disbursements, which ultimately needed to be considered.
Clone’s submissions dated 2 May 2025 supporting its application for interest (appearing in Reasons No 14), Schedule 1, included tables setting out interest alternatively claimed to 30 November 2008, and to 20 February 2008, and in these calculations separate amounts were assigned to solicitor’s fees, counsel fees, and disbursements (then totals for these collectively).
Likewise, in Players’ interest calculations tabled by their Counsel Mr Whitington at the hearing on 23 May 2025, each of scenarios A, B and C separated out the individual components for solicitors’ fees, counsel fees, and disbursements.
In Reasons No 13 published on 11 April 2025, when a bifurcated hearing on interest was ordered, reference was made in paragraph [3] to the service by Players of three offers for costs, including interest, with interest to be calculated based on the amounts allowed for solicitors’ fees, counsel fees, and disbursements, up to the date of the offers.
At paragraph [63] of those reasons, it was observed that once the Court had made a determination of the issues as to how much interest was allowable, then the second phase of the two stage submissions could be ventilated, considering whether Players had beaten any of their offers, or not, as the case may be. There followed at the foot of these reasons the orders summarised above.
In Reasons No 14, the subject of the present review, stage one of the bifurcated hearing was finalised, but instead of separating the global lump sum award into the three separate components contemplated when the process was fixed, they were fixed in the single sum of $125,000.
As the consideration of Player’s three offers of costs and interest will necessarily involve having to include interest in each component, in order to enable a comparison of each offer and whether it was “beaten” or not, it will be necessary that in each case the interest component will need to be crystalised at this stage. Accordingly, it is appropriate to reconsider the orders made in Reasons No 14, and to vary them in the manner now sought by Players, namely to separate the total interest award into three individual costs components for solicitors’ fees, counsel fees, and disbursements.
In consequence, there must be a decision as to the form in which the order should be amended on the review.
In my view, this can be undertaken quite simply. The confirmed sum of $125,000 to be awarded for interest should be apportioned to each of the three components of Clone’s awarded costs in the same proportions as they bear to each other. The amounts awarded for solicitors’ fees, counsel fees and disbursements have now been determined on the taxation. Solicitors’ fees have been fixed at $207,826.77, counsel fees at $324,166.53, and disbursements at $98,431.81, totalling $630,424.81. A global figure of $125,000 for interest has been assessed. This should now be reflected not as a global sum, but instead subdivided in three separate orders, one for each of the components. The totals for each of the three orders can be calculated by identifying the percentage of the interest allowance, namely $125,000, to the total costs awarded to Clone namely $630,424.81 and applying this ratio to each of the three components of the latter, the solicitors’ fees, counsel fees, and disbursements, so that each of these three components contains both costs and interest allowances.
This will enable the Court to decide whether, or not, Players’ offers have “beaten” the amounts ultimately allowed or not.
I will accordingly direct the parties to confer to endeavour to agree the correct figures for each component in accordance with the above analysis, and fix a further hearing date to either give directions or alternatively then hear submissions relating to the stage two process. I will also hear from the parties in relation to the costs of the review.
Orders
1.On the first ground of review sought by Players, the Court declines to increase the total interest awarded in its orders contained in Reasons No 14.
2.The Court upholds the second ground of review and in lieu of a total award of $125,000 for interest it is instead ordered that a revised /specific interest calculation be performed in respect of each of the three individual costs components set out in Clone’s Schedule 1 being solicitors’ fees, counsel fees and disbursements.
3.These calculations are to be made by identifying a percentage of the interest allowance namely $125,000 to the total costs awarded to Clone namely $630,424.81, and then applying this to each of the three components being solicitors’ fees, counsel fees, and disbursements.
4.The parties are directed to confer in an endeavour to agree the correct figures for each component. If they cannot agree, the Court will determine the amounts following the receipt of submissions.
5.Formal orders will then be made on this issue reflecting the appropriate amounts to be awarded, and these orders will become non provisional and constitute a judgment of the Court.
6.A further hearing date is to be fixed for either directions and orders, or to hear submissions relating to the stage two process, and as to the costs of the review.
7.The parties are to contact Chambers to arrange a mutually convenient date for that hearing.

[2025] SASC 173

16 October 2025