Jane Panagaris McEntee, Deborah Ann McEntee v SJ Berry Pty Ltd, Sandra Joy Berry - [2025] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JANE PANAGARIS MCENTEE, DEBORAH ANN MCENTEE v SJ BERRY PTY LTD, SANDRA JOY BERRY & OTHERS
[2025] SADC 52
Judgment of his Honour Judge Burnett
15 May 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - FORM AND SETTLING OF COSTS ORDERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - RECOVERY OF COSTS - TIME FOR PAYMENT
By an interlocutory application made on 23 August 2024, the applicants sought, prior to the institution of the taxation of costs, an interim costs judgment in the sum of $480,000 against the second respondent. One of the costs orders made in the proceedings by the trial judge was that from 11 April 2020, the respondents jointly and severally pay the applicants’ costs on an indemnity basis. During the course of argument, the applicants accepted that the figure of $480,000 was too high and instead sought the sum of $348,750 (being 75% of solicitor and counsel fees) or alternatively $232,500 (50% of solicitor and counsel fees).
The respondents opposed the application and contended that there was no power under the Uniform Civil Rules 2020 (SA)(UCR) to grant an interim costs judgment prior to the institution of the process of the taxation of costs. Alternatively, it was contended that if the Court does have that power, it should exercise its discretion not to make an order in the present case.
Held:
(1)     An interim costs judgment is granted in favour of the applicants against the second respondent     in the sum of $232,500.
(2)     UCR 195.8 does not provide the power to make an interim costs judgment prior to the       institution of the taxation of costs because:
(a) a judge of this Court is not, at that time, a taxing officer within the meaning of UCR 191.1: Pickering v Smoothpool (No 6) [2001] SASC 440 distinguished;
(b) the power to make such an order is not, at that time, “on a taxation” or “in respect of a taxation” within the meaning of UCR 195.8: Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110; R (on the application of Geologistics Ltd) v Financial Services Compensation Scheme [2004] 3 All ER 39 considered.
(3) UCR 195.2(4) provides the power to make an interim costs judgment prior to the institution of the taxation of costs. UCR 195.2(4) expressly permits orders relating to the taxation of costs to be made prior to the institution of the taxation of costs. An interim costs order relates to the taxation of costs because it is payment on account of costs and requires a consideration of the final result upon an adjudication and assessment that something exceeding the interim costs judgment will ultimately be recovered: Players Pty Ltd (In liq) v Clone Pty Ltd [2019] SASC 186 applied. There is no conflict between UCR 195.2(4) and UCR 195.8 such that the rule of statutory interpretation that a general provision in a statutory instrument will give way to the specific provision has no application: Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 applied. There is no basis to read down UCR 195.2(4).
(4) The purpose of the exercise of power to make an interim costs judgment is to prevent the     detriment that a claimant for costs may suffer by the delay occasioned by the taxation process         and therefore being out of pocket for costs for a period of time. The matters to be considered     in the exercise of the discretion to make an interim costs judgment prior to the institution of      the taxation include the following: (1) that there exists a liability to pay costs: (2) the length       of time since the making of the costs order; (3) the reason for the delay in proceeding to      taxation; (4) what has happened since the costs order was made; (5) the prejudice that might be suffered by the applicant for costs if an order is not made; (6) the prejudice that might be         suffered by the respondent if an order is made; (7) whether it can be said with certainty that         the amount sought will not exceed the amount ultimately ordered to be recovered; (8) the fact that there has been no bill of costs in taxable form; (9) the anticipated time it will take to hear taxation; and (10) the fact that an application for interim costs may interfere with the orderly      taxation of costs.

(5) Payment of costs by two or more persons creates a joint and several liability which may be enforced against one of those persons and taxed against that person alone: Thiess Watkins White Construction Limited (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452 applied. In circumstances where a very conservative approach is taken to the fixing of the quantum of costs and the Court is satisfied that the amount is indisputably owed, there is no unfairness to the other respondents if an order is made against the second respondent.
(6) Taking into account all of these matters, it is in the interests of justice that an interim costs judgment be granted.
(7) The amount of the interim costs order should not exceed the amount that is indisputably or undeniably owed to the applicants: Johnson Winter Slattery v MP Investments Nominees Pty Ltd [2013] SASC 157; Rodda v Ian Rodda Pty Ltd [2016] SASC 90 applied.
Uniform Civil Rules 2020 (SA) rr 1.5, 191.1, 195.8, 195.1, 195.2, 195.2(2), 195.2(4), 195.8, 195.8(1), 195.8(3); Supreme Court Rules 1987 (SA) rr 101A.02, 101.13, 101.13(a), 101.19, 101.21, 101.22(3); Supreme Court Rules 2006 (SA) rr 271(1); 274(2)(b)(2)); referred to.
Pickering v Smoothpool (No 6) [2001] SASC 440; R (on the application of Geologistics Ltd) v Financial Services Compensation Scheme [2004] 1 ALL ER 198; R (Geologistics Ltd) v Financial Services Compensation Scheme [2004] 3 ALL ER 39; Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110; Paterson v Chadwick [1974] 2 All ER 772; R (on the application of Geologistics Ltd) v Financial Services Compensation Scheme [2004] 1 ALL ER 198; Svenska Petroleum Exploration AB v Lithuania (No 2) [2006] EWCA Civ 1529; Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; Players Pty Ltd (in liq) v Clone Pty Ltd [2019] SASC 186; Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652; R v Van Wyk (2018) 132 SASR 46; Taylors v Owners-Strata Plan 11564 (2014) 253 CLR 531; Norbis v Norbis (1986) 161 CLR 513; PS Chellaram v China Ocean Shipping Co (1991) 65 ALJR 642; Thiess Watkins White Constructions Limited (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452; Johnson Winter Slattery v MP Investments Nominees Pty Ltd [2013] SASC 157; Rodda v Ian Rodda Pty Ltd [2016] SASC 90, applied.

JANE PANAGARIS MCENTEE, DEBORAH ANN MCENTEE v SJ BERRY PTY LTD , SANDRA JOY BERRY & OTHERS
[2025] SADC 52
Introduction

This judgment concerns the power of the Court to grant an interim costs judgment prior to the institution of the taxation of costs and, if the power exists, the circumstances in which the Court might exercise its discretion to make such an order.
On 8 September 2021, Judge O’Sullivan ordered that the respondents jointly and severally pay the applicants the judgment sum of $205,243, comprising the sum of $167,500 in damages, and $37,743 in pre-judgment interest. On 12 November 2021, Judge O’Sullivan made a series of cost orders, one of which was that as from 11 April 2020, the respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings on an indemnity basis.
The applicants have incurred costs from 11 April 2020 of solicitors’ fees in the sum of approximately $324,000 and counsel fees in the sum of approximately $141,000, making the total sum of costs incurred of just over $465,000.00.
By an interlocutory application made on 23 August 2024, the applicants sought an order that there be an interim costs judgment in the sum of $480,000 against the second respondent in relation to the applicants’ costs of the proceedings. In the course of argument in relation to the application, the applicants accepted that the figure of $480,000.00 was too high for the interim costs judgment and have instead sought judgment in the amount of $348,750 being 75% of $465,000, or, alternatively, have sought judgment in the sum of $232,500 being 50% of $465,000. The applicants submitted this latter alternative would be very conservative and could be safely made by the Court.
Three issues arise on the application:
(1) Does the Court have the power under the Uniform Civil Rules 2020 (UCR) to make an interim costs judgment prior to the institution of the process of the taxation of costs?
(2) If the Court does have that power, should it exercise its discretion and make such an order?
(3) If the Court has the power and determines that it is appropriate to exercise its discretion to make such an order, in what amount should an interim costs judgment be granted?
The second respondent opposes the making of the order and contends there is no power for the Court to make the order at a time when the process of the taxation of costs has not been initiated. Alternatively, the second respondent submits that if the Court finds that it has the power to make an interim costs order at this stage, the Court ought to exercise its discretion not to do so.
Source of Power to make an interim costs judgment
The applicants contend that the Court has power to make an interim costs judgment, prior to the taxation being instituted, under UCR 195.8 or, alternatively, under UCR 195.2(4).
UCR 195.8 as a Source of Power
UCR 195.8 provides:
A taxing officer has on and in respect of a taxation, the same powers as the Court in relation to a proceeding in the Court.
Example –
A taxing officer may order or take evidence (on affidavit or orally), require the production of documents, require the attendance of witnesses or make orders about the participation of persons interested in the taxation.
A taxing officer, in undertaking a taxation, is not bound by the rules of evidence and may decide questions by estimation or by any other expedient means.
Without effecting the generality of sub rule (1), the taxing officer may;
(a) require a party to produce its records of costs and disbursements and any other material relevant to the taxation (subject to any claim for privilege);

(b) require a party to provide further details of any item the subject of a claim for costs;
(c) make interim orders;
(d) order repayment of any overpayment of costs; or
(e) make any orders that might be made on a directions hearing in a proceeding.
A taxing officer is defined under UCR 191.1 as meaning the officer responsible for taxing costs and in the District Court will usually be a Master or Judicial Registrar but may be a Registrar or a Judge. Taxation is defined as the process under Part 5 of the UCR for the quantification of costs payable under a costs order. Under Part 5, before initiating a taxation process, a claimant must, pursuant to UCR 195.1, make a genuine offer to the liable party to resolve the amount of costs payable that would otherwise be the subject of the taxation process. Pursuant to UCR 195.2, a claimant may apply for the taxation of costs by filing and serving a claim for costs in the prescribed form. In the present case, the applicants have made an offer to the second respondent pursuant to UCR 195.1 but have not filed and served a claim for costs pursuant to UCR 195.2. The taxation process therefore has not commenced. The second respondent has, after the costs judgment of Judge O’Sullivan, continued to deny any liability for costs and has also attempted to discharge the costs orders that were made by Judge O’Sullivan.
UCR 195.8 will give a judge of this Court the power to make an interim costs judgment prior to the institution of the taxation of costs if:
(1) The judge is a taxing officer for the purposes of UCR 195.8(1);
(2) The order is made “on or in respect of a taxation”.
These issues were considered in respect of similar, but not identical, provisions under the Supreme Court Rules (SCR) 1987 in Pickering v Smoothpool (No 6) (Pickering).[1] Under 1987 SCR 101A.02, a party wishing to tax costs must serve a short form bill of costs in the prescribed form.[2] 1987 SCR 101.13(a) provides that “on a taxation of costs, a taxing officer may make separate or interim allocaturs, direct the issue of separate or interim certificate or allocaturs”.[3]
[1] [2001] SASC 440.
[2] Ibid, [8].
[3] Ibid, [13].
Pickering was an appeal from the decision of a Master who had issued an interim costs order. Gray J held that the Master did not have power to make an interim costs order because no bill of costs in a taxable form had been lodged and therefore the taxation of costs had not commenced and the order was not made “on a taxation” as required by 1987 SCR 101.13(a).[4]
[4] Ibid, [36].
In Pickering, Gray J did not consider whether the Master was, prior to the institution of the taxation, a taxing officer for the purposes of 1987 SCR 101.13(a). In the course of his judgment, Gray J referred to an earlier application to the trial judge for an interim allocatur, which the trial judge dismissed.[5] The trial judge took the view that the application should have been made to a taxing officer conducting a taxation of costs. The trial judge held that there was no doubt that the taxing officer or Master had the power to grant the interim allocatur under rule 101.13. However, the trial judge held that he did not have the power to make an order pursuant to rule 101.13, not because he was not a taxing officer, but because he was not conducting a taxation of costs.[6]
[5] Ibid, [5].
[6] Ibid.
The applicants submitted that the decision in Pickering and in particular the reference to the decision made by the trial judge, supported their contention that a judge was, prior to the institution of the taxation, a taxing officer for the purposes of UCR 195.8.
I did not consider that the trial judge in Pickering was making a positive finding that he was a taxing officer but instead found that he did not have the power to make the interim costs order because he was not making an order “on a taxation.” In any event, there is a different definition of a taxing officer under the 1987 SCR to the definition in the UCR. In 1987 SCR 101.22(3), a taxing officer means a Master, or any other person appointed by the chief justice to be the taxing officer pursuant to subrule (1) (which deals with the appointment of non-judicial staff as the taxing officer and is therefore not relevant to the present matter). 1987 SCR 101.22(3) suggests that a judge is not the taxing officer. The structure of the 1987 rules also suggests that a judge making an interim costs judgment is not the taxing officer. 1987 SCR 101.19 sets out a regime for the reconsideration of a taxation. SCR 101.21 provides for a review by a judge if a person is dissatisfied with a reconsideration. That provision also suggests that under the 1987 Rules, it is the Master who is the taxing officer.
UCR 191.1 is in quite different terms. It provides that a judge may be the taxing officer but defines the taxing officer as the officer responsible for taxing costs. I do not consider that before the taxation of costs has been instituted, any person, including a judge of the Court, can be considered to be responsible for taxing costs. Under UCR 191.1, taxation means the process of the quantification of costs under Part 5 of the UCR. Putting the two definitions together, the taxing officer is the officer responsible for the process under Part 5 for the quantification of costs.
Prior to the institution of the taxation, a judge is not responsible for the quantification of costs. A judge, at that time, therefore, is not a taxing officer within the meaning of UCR 191.1 and, it follows, does not have power to make an interim costs order pursuant to UCR 195.8 which is vested only in the taxing officer.
The second requirement under UCR 195.8 is that the power be exercised “on and in respect of a taxation”. That phrase differs from 1987 SCR 101.13(a) which referred to powers being exercised “on a taxation”.
The applicants therefore submitted the decision in Pickering was distinguishable as the circumstances in which an interim costs order might be made had been expanded under the UCR to include when the order was “in respect of a taxation”. It was submitted that the decision in Pickering was authority for the proposition that the interim costs order was not made “on the taxation”, as the taxation has not been initiated. However, it was submitted that although the power was not being exercised on a taxation, it was “in respect of a taxation” and therefore came within UCR 195.8.
I do not consider that an interim costs order, made prior to the institution of the taxation, even if made by a taxing officer, is made “in respect of a taxation”. The words “in respect of” must be interpreted in their particular statutory context, but require some connection between the two subject matters, that is, in this case, the interim costs order and the taxation.[7] Mann CJ in Trustees Executors & Agency Co Ltd v Reilly held:[8]
The words in respect of are difficult of definition but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer.
[7] R (on the application of Geologistics Ltd) v Financial Services Compensation Scheme [2004] 1 ALL ER 198, [30] and [32]. Confirmed on appeal in [2004] 3 ALL ER 39 at [12]-[17].
[8] [1941] VLR 110,111.
Applying this guidance, the words “in respect of” have a wide meaning but must require some connection between the two subject matters to which they refer.[9] However, as Waller LJ held on appeal in R (on the application of Geologistics Ltd) v Financial Services Compensation Scheme,[10] the proper construction of the words depends on their context and little assistance is derived from other cases. The suggested connection must be considered in the context of UCR 195.8 which requires a connection between the proposed exercise of power, namely the making of an interim costs order, and the taxation of costs. The example given in

UCR 195.8(1) and the other orders referred to in UCR 195.8(3) all concern orders that are made on the taxation and after the institution of the taxation. The grantee of the power, the taxing officer, only assumes powers on the institution of the taxation. It is difficult to see how a power is “in respect of” something that has not commenced and may not commence. For example, an order for pre-action discovery is not an order made in respect of the proceedings but is an order made in a separate proceeding. These matters lead me to conclude the words “in respect of” a taxation, although broad, do not include a power that is intended to be exercised prior to the institution of the taxation.
[9] Trustee Executors & Agency Co Ltd v Reilly [1941] 1 VLR 110,111.
[10] [2004] 3 All ER 39, [12]-[17]
Therefore, UCR 195.8 does not give the Court power to make an interim costs judgment prior to the institution of the taxation because a judge is not the taxing officer and an order made at that stage is not in respect of the taxation.
UCR 195.2(4) as a Source of Power
The applicants contend that UCR 195.2(4) provides an alternative source of power to make an interim costs judgment. UCR 195.2(4) provides that:
The claimant or liable party may apply for an order relating to the taxation of costs, notwithstanding that a claim for costs not being filed under subrule (1), by filing an interlocutory application and supporting affidavit in accordance with rule 102.1

UCR 195.2(4) therefore permits an order to be made before the process of the taxation has been initiated. The process of taxation is initiated under

UCR 195.2 (1) by the filing of the claim of costs in the prescribed form.

UCR 195.2(4) differs from UCR 195.8 in several respects in relation to the power to make an interim costs order. First, the exercise of the power is not limited to the taxing officer. Secondly, the power can also be exercised before the taxation commences. UCR 195.2 (4) therefore recognises that the exercise of the power may relate to a taxation, even though the taxation has not commenced.
The issue therefore that arises is whether the order sought in the interim costs judgment is an order relating to the taxation of costs for the purposes of

UCR 195.2(4). The phrase “relating to” is capable of bearing a broader or narrower meaning as the context requires.[11] The context in which the provision appears will be critical in determining how widely the phrase is construed.[12]
[11] Svenska Petroleum Exploration AB v Lithuania(No 2) [2006] EWCA Civ 1529, [137].
[12] Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 per Kitto J and Taylor J.
The applicants submit that the exercise of the power to grant an interim costs judgment and therefore the phrase “relating to the taxation of costs” must be considered in its statutory context. In Players Pty Ltd (in liq) v Clone Pty Ltd,[13] Auxiliary Judge Norman held that an interim allocatur (which was the term used in 2006 SCR 271(1) and 274(2)(b)(2)) is a payment on account of costs and requires a consideration of the final result upon an adjudication and an assessment that something exceeding the interim allocatur would ultimately be recoverable after full argument was heard.[14] In this context, the interim allocatur or interim costs judgment is a matter relating to the taxation of costs as it is an assessment of what might be ordered on a taxation and a determination that the amount that will ultimately be recovered is clearly an amount in excess of the interim judgment. The fact that the interim costs judgment may be granted before the taxation has commenced, suggests that the phrase “relating to” will not bear a narrow meaning.
[13] [2019] SASC 186.
[14] Ibid, [154].
Counsel for the second respondent submitted that UCR 195.2(4) was a general provision and must be subject to the specific provision contained in

UCR 195.8 (generalia specialibus non derogant). It is a rule of statutory construction that where there is a conflict between a general provision in an Act and a specific provision, the general provision will give way to the specific provision.[15] However, this principle of statutory interpretation is only applied where there is a conflict between the two provisions which cannot be reconciled as a matter of statutory interpretation.[16]
[15] Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1, 29; [1948] HCA 24.
[16] Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652, 657; [1985] HCA 54.
I do not consider that this principle of statutory interpretation applies in the present case. There is no conflict between the provisions. UCR 195.2(4) is, by its express terms, dealing with the exercise of power before the process of taxation has been initiated. In such a case, there is no reason to limit the power contained in UCR 195.2(4) to a taxing officer on the taxation. UCR 195.8 is dealing with the exercise of power after the taxation of costs has been commenced and a taxing officer has been appointed. Neither provision can be considered the specific provision, they simply deal with different circumstances.
The second respondent further submitted that UCR 195.2(4) should be read down so as not to permit the Court to make an order relating to the taxation of costs at any time, given the taxation regime that had been established under Part 5 of the UCR. In these circumstances, the second respondent submitted that UCR 195.2(2) should be read down to apply to procedural or administrative orders only.
A statutory provision will be read down by giving wide words a narrower meaning which more closely accords with the statutory intention.[17] The Court’s task is not to divine unexpressed legislative intention but to construe the meaning of the statutory text in its context.[18] The context may reveal that an interpretation should be adopted that permits an implicit restriction on the otherwise general words. I do not consider that the context of UCR 195.2 provides any reason to limit the power under UCR 195.2(4) to only making administrative or procedural orders. The natural meaning of the words permit an interim costs judgment to be made. There may be good reason why an order may be sought prior to the institution of the taxation. A limitation upon those general words could have been easily inserted, had it been intended. The context of UCR 195.2(4) does not provide any reason for reading down the general provision.
[17] R v Van Wyk (2018) 132 SASR 46, [32]; [2018] SASCFC 138.
[18] Taylors v Owners-Strata Plan 11564 (2014) 253 CLR 531, [65]-[66]; [2014] HCA 9.
Therefore, I find that the Court has power to grant an interim costs judgment pursuant to UCR 195.2(4) prior to the initiation of the taxation process.
Exercise of discretion
The next question for determination is whether the Court should make an order for an interim costs judgment under UCR 195.2(4). That rule gives the Court an unfettered discretion as to whether it makes an order granting an interim costs judgment. Brennan J in Norbis v Norbis[19] provided guidance as to how such a discretion should be exercised. Brennan J held:[20]
It is one thing to say that principles may be expressed to guide the exercise of a discretion: it is another thing to say that the principles may harden into legal rules which confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise: Gardner v Jay (1885) 29 Ch D 50 at 58-9; followed in Huntley v Alexander (1922) 30 CLR 566.
[19] (1986) 161 CLR 513; [1986] HCA 17.
[20] Ibid, 537.
Brennan J went on to hold:[21]
If it is possible to develop such guidelines, it is possible to ensure order and consistency in the exercise of the discretionary jurisdiction under the Family Law Act. In Ward v. James (1966) 1 QB 273, Lord Denning M.R. addressed the problem of guiding the exercise of an unfettered judicial discretion. He said (at p.295) The cases all show that, when a statute gives discretion, the courts must not fetter it by rigid rules from which a judge is never at liberty to depart. Nevertheless the courts can lay down the considerations which should be borne in mind in exercising the discretion, and point out those considerations which should be ignored. This will normally determine the way in which the discretion is exercised, and thus ensure some measure of uniformity of decision. From time to time the considerations may change as public policy changes, and so the pattern of decision may change: this is all part of the evolutionary process.
[21] Ibid, 538.
McHugh J in PS Chellaram & Co Ltd v China Ocean Shipping Co[22] held (in relation to the exercise of an unfettered discretion to award security for costs) that the weight given to any particular circumstance depends not only on its own intrinsic persuasiveness but also upon its impact on the other circumstances that have to be weighed.
[22] (1991) 65 ALJR 642; [1991] HCA 36.
The Court, in accordance with these principles, should not apply any fixed rule that might determine how the discretion should be exercised, but instead consider the factors which are relevant to the exercise of the power and consider whether it is in the interests of justice to make an order. The purpose of the exercise of a power to make an interim costs judgment is to prevent the detriment that a claimant for costs may suffer by the delay occasioned by the taxation process and therefore be out of pocket for their costs for a period of time. The exercise of that power, in appropriate circumstances, is consistent with the object of the UCR, as expressed in rule 1.5 namely the just, efficient, timely, cost-effective and proportionate resolution of the issues in the proceedings.
In the present case, the following matters are relevant to the exercise of the discretion. First, the fact that there exists a liability on the part of the second respondent to the applicants to pay costs. Secondly, the length of time since the making of the costs order. Thirdly, the reason for the delay in proceeding to the taxation of costs. Fourthly, and related to the previous matter, what has transpired since the making of the costs order. Fifthly, the prejudice that might be suffered by the applicants if an interim order is not made. Sixthly, the prejudice that might be suffered by the respondent if an interim order is made. Seventhly, whether it can be said with some certainty that the amount of the interim costs order will not exceed the amount of costs that is ultimately ordered. Eighthly, and related to the previous matter, the fact that there has been no bill of costs in taxable form. Ninthly, the anticipated time in which it might be expected that a taxation will be heard. Tenthly, the fact that an application for an interim costs order may interfere with the orderly taxation of costs. Further matters may be relevant in other cases.
Applying these matters to the present application, the applicants are entitled to indemnity costs from the respondents, including the second respondent for the costs incurred in the specified period. There has been considerable delay since the making of the costs order. The order for costs was made on 12 November 2021, about three and a half years ago. These matters weigh in favour of making an interim costs judgment.
The applicants submitted that they had not instituted the taxation because the preparation of the bill of costs will take some time to prepare and will be a very lengthy document. The itemised bill of costs demonstrates this to be the case. The itemised bill of costs runs to some 3,500 items. The actions of the second respondent have contributed to the delay of the applicants in proceeding with a taxation of costs. The second respondent, as was her right, appealed the judgment to the Court of Appeal, which was unsuccessful. The second respondent then sought leave to appeal to the High Court, which application was dismissed. The second respondent has brought a series of applications which have not been successful. Those applications have included: (1) an application to stay the enforcement of judgment pending the outcome of the application for special leave; (2) a further application that the judgment be stayed pending the outcome of an application to set aside the judgment; (3) an application that the judgment be set aside on the basis that it had been entered into in bad faith, including fraud; (4) an application that the costs judgment of Judge O’Sullivan be set aside; (5) an application that the applicants pay the second respondent’s costs of the proceedings; (6) an application that judgment be stayed pending determining of various other applications; (7) an application that the insurer of the second respondent and its agent be joined to the proceedings; (8) an application that the insurer of the first and second respondent pay the costs of the applicants; (9) an application that the applicants return monies paid on account of security of costs; (10) an application to set aside or discharge a freezing order.
In these circumstances, I consider that the applicants have shown that there is good reason why the taxation of costs has not proceeded.
The applicants have not adduced evidence of any specific prejudice that they might suffer if an order is not made granting an interim costs judgment. They have not adduced evidence, for example, that they will suffer particular financial detriment by not recovering any of their costs at this point of time. This is therefore not a relevant matter in the exercise of the discretion.
Equally, the second respondent has not adduced any evidence of particular prejudice that she might suffer if an interim costs judgment is made at this point in time. This is therefore also not a relevant matter in the exercise of the discretion.
It can be said with certainty that, in respect of the lower of the two amounts proposed by the applicants as the quantum of the interim costs, will incontrovertibly not exceed the amount that will be ordered on a full taxation. That is a matter that weighs in favour of the making of an order. The Court can be satisfied that the second respondent owes the applicants the specified amount. If the proposed amount exceeded the amount that would be incontrovertibly ordered on a full taxation, that would be a very strong reason not to make an interim costs judgment.
The second respondent submitted that where a taxation had not taken place, there had been no scrutiny of the costs claimed by a taxing officer who was experience in the taxation process. That is a relevant factor but does not have much weight in the present case where the applicants are entitled to indemnity costs and have provided a detailed itemised account of their costs. If a conservative approach is taken to the fixing of the quantum of the interim costs judgment, the absence of a bill of costs does not cause any prejudice or disadvantage to the second respondent.
There was no evidence adduced by either party as to the time a taxation might take. It is not appropriate that the Court engage in speculation on this issue. This factor is therefore neutral in the present case.
The making of an interim costs order does interfere with the normal procedure of the taxation of costs which includes the claimant first making a genuine offer before initiating the taxation process by filing and serving the claim for costs. In this case, the applicant has made the offer but has not proceeded to initiate the claim for costs. This is a factor in favour of the second respondent.
The second respondent submitted that the order should not be made because the liability of the second respondent was joint and several with the liability of the other respondents. That does not provide a basis for not making an order and is a matter of little weight in the exercise of the discretion to make an interim costs judgment. When parties are jointly and severally liable in relation to a debt or obligation, the party to whom the obligation is owed, is entitled to pursue any of the parties liable. That point was considered by Cooper J in Thiess Watkins White Constructions Limited (in liq) v Witan Nominees (1985) Pty Ltd.[23] In that case, Cooper J held that an order for the payment of costs by two or more persons creates a joint and several liability which may be enforced against one of those persons and taxed against that person alone.
[23] [1992] 2 Qd R 452.
The second respondent further submitted that the interim costs judgment should not be made against one respondent where a number of persons are under a joint and several liability as such an order will affect the rights of those other respondents who will incur an equitable obligation to the second respondent to provide contribution upon payment by the second respondent of the interim costs judgment. In circumstances where a very conservative approach has been taken to the fixing of the quantum of the costs and the Court can be satisfied that the amount is indisputably owed, there is no unfairness to the other respondents.
Taking into account all of the above matters, I consider that it is in the interests of justice that an order is made for an interim costs judgment and that it is appropriate to exercise my discretion in favour of the making an interim cost order.
The amount to be specified in the interim costs judgment
The next question that arises is determining the quantum of the interim costs judgment. There have been a series of cases where the Court has considered the amount that should be ordered if it is appropriate to make an interim costs judgment. In Johnson Winter Slattery v MP Investments Nominees Pty Ltd [24]

Judge Dart referred to monies undeniably owed to the plaintiff. In Rodda v Ian Rodda Pty Ltd,[25] Judge Roder stated that it was appropriate that the court should be very cautious, but the general principle should be that a party entitled to costs pursuant to an order of the court should not be kept out of money to which they are undisputably entitled. Judge Roder ultimately made an interim order of 50% of the claimed costs. Auxiliary Judge Norman in Players v Clone,[26] referred with approval to those decisions and held that the authorities mandated that a conservative approach be taken when assessing an amount of costs which was beyond any reasonable dispute.
[24] [2013] SASC 157, [10].
[25] [2016] SASC 90, [21].
[26] [2019] SASC 186, [155].
The costs order in this case is that costs be paid on an indemnity basis. Indemnity costs are defined in UCR 191.1 to mean costs which are a complete indemnity against the costs incurred by the person entitled to the payment of costs except to the extent that the costs are shown by the liable person to have been unreasonably incurred. The applicants submitted that the 50% of the claimed costs adopted by Judge Roder in Rodda was a very safe route to take, but a higher figure could be applied to the present case. The applicants sought 75% of the costs that they had incurred in the relevant period. In support of that contention, the applicants adduced evidence that counsel fees in the relevant period were $141,377.50 (including GST) and solicitors fees were $324,403.75 (including GST).
The applicants provided evidence of a detailed itemised breakdown of their costs in the affidavit material that they filed at the Court. The applicants also adduced evidence that in their experience, where an order had been made that costs be recovered on a standard costs basis, they recovered about 65-70% of solicitor’s costs and 95-100% of counsel fees. Given that the order was that the second respondent pay indemnity costs in this period, the applicants submitted that the Court could be satisfied that at least those amounts would be recovered.
The second respondent submitted that there had been no scrutiny applied to the costs claimed by the applicants. The second respondent raised some concerns in relation to the itemised account of costs that had been prepared by the applicants for the purposes of this application. Those concerns were explained and corrected in the subsequent affidavit filed by the applicants. The concerns raised relate to relatively small amounts which would not cause the Court to have doubts that the amount of costs that will be ultimately recovered under that order will exceed 50% of costs that are sought by way of an interim costs judgment.
I accept the submission of the second respondent that the claim for costs by the applicants is at a higher level than an itemised bill of costs and therefore it has not been scrutinised with the level of detail that will be applied in a taxation of costs. That however is not a reason to refuse to make an order but to adopt a conservative approach to ensure that the amount of the interim order does not exceed the amount ultimately found on the taxation. Adopting this approach, I consider that it is appropriate to order that an interim costs judgment of 50% of the costs claimed by the applicants be awarded by way of an interim costs judgment. I find that this amount is an appropriate determination, on a conservative basis, because (1) the order was for indemnity costs; (2) the amount sought includes a relatively high percentage of counsel fees which it is reasonable to expect could be almost fully recovered; (3) the evidence adduced by the applicants as to costs was detailed and provided a reasonable basis to conclude that the 50% of the costs claimed would be able to be recovered.
Conclusion

For the reasons that have been expressed, I grant an interim costs judgment to the applicants against the second respondent in the sum of $232,500 (rounded down) in respect of the order made by Judge O’Sullivan on 12 November 2021 that the respondents jointly and severally pay the applicants’ costs of and incidental to the proceedings from 11 April 2020 on an indemnity basis. I will hear the parties as to the costs of this application and any further orders.