Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) ABN 90 103 392 182 (No 2)

Faamate and others brought an application against the Congregational Christian Church in Samoa-Australia (Ipswich Congregation) for an order winding up the incorporated Association on the just and equitable ground. The applicants sought various declarations in relation to the church's governance and financial practices. The applicants were unsuccessful in their primary application for a winding-up order, but they were largely successful in obtaining the declaratory relief they sought. The respondents made an open offer on the eve of the trial which did not include the declaratory relief. The applicants applied for an order that the respondents pay the applicants' costs of the proceeding, and for a joint costs order.

The central issue before the court was whether the respondents should pay the applicants’ costs of the proceeding, and if so, in what apportionment. The court considered the applicants' success in obtaining declaratory relief, the failure to reach a settlement including the declaratory relief, and the respondents' open offer. The court also considered the appropriate apportionment of costs given the partial success of the applicants. The court held that the applicants were entitled to an order for costs, and that the order should be joint. The applicants were awarded 65% of their costs on the standard basis, to be assessed.

The court's reasoning was grounded in the principle that costs generally follow the event, but that this principle is not absolute. The court considered the applicants' overall success, the nature of the relief sought and obtained, and the conduct of the parties during the litigation. The court determined that the applicants' substantial success in obtaining declaratory relief warranted an order for costs, but that the order should be joint given the partial nature of the applicants' success. The court ordered that the respondents pay the applicants 65% of their costs on the standard basis, to be assessed.