M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations (No 4)

Case •

[2025] NSWLEC 113

•

15 October 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations (No 4) [2025] NSWLEC 113
Hearing dates: 2 June 2025, 27 August 2025 with written submissions on 2 May 2025, 20 May 2025, 8 July 2025, 22 July 2025
Date of orders: 15 October 2025
Decision date: 15 October 2025
Jurisdiction:Class 5
Before: Pain J
Decision:

(1)   The Prosecutor is to pay the First, Second, Fourth, and Fifth Defendants’ professional costs of the notices of motion determined in M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations(No 3) [2025] NSWLEC 30 as agreed or assessed

(2)   The Prosecutor is to pay half of the First, Second, Fourth, and Fifth Defendants’ costs of the application for costs awarded in order 1

Catchwords:

CRIMINAL - costs – award of costs following finding of abuse of process by private prosecutor in commencement of multiple proceedings

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5F

Criminal Procedure Act 1986 (NSW), s 253 (repealed), Ch 4 Pt 5 Div 4, s 257C

Evidence Act1995 (NSW), s 135

Protection of the Environment Operations Act 1997 (NSW), Pt 8.2, ss 115, 142A, 143, 144, 144AAA, 216, 219

Cases Cited:

Director-General, Department of Environment and Climate Change v Gleeson (No 2) (2009) 213 A Crim R 37; [2009] NSWLEC 200

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2) [2023] NSWLEC 111

M&S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24

M.& S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17

M.& S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations [2024] NSWCA 151

M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations(No 3) [2025] NSWLEC 30

Texts Cited:

Nil

Category:Costs
Parties: M.&.S. Investments (NSW) Pty Ltd (Prosecutor)
Affordable Demolitions and Excavations Pty Ltd (Defendant, 2021/261150-53) (First Defendant)
Chalita Boutros (Defendant, 2021/261154-57) (Second Defendant)
Futurepower Developments Pty Ltd (Defendant, 2021/261158-62) (Third Defendant)
Angela Carbone (Defendant, 2021/261163-67) (Fourth Defendant)
Domenic Carbone (Defendant, 2021/261168-72) (Fifth Defendant)
Rimon Boutros (Defendant, 2021/261173-76) (Sixth Defendant)
Representation:

Counsel:
R Tripodi (Prosecutor)
D Wilcox (First, Second and Sixth Defendants)
D Carbone (Fourth Defendant as Litigant in person, Fifth Defendant as agent)
Not applicable (Third Defendant)

Solicitors:
Watson Stafford & Zipkis Nguyen (Prosecutor)
Boutros & Associates (First, Second and Sixth Defendants)
Not applicable (Fourth and Fifth Defendants)
Not applicable (Third Defendant)
File Number(s): 2021/00261150, 2021/00261151, 2021/00261152, 2021/00261153, 2021/00261154, 2021/00261155,
2021/00261156, 2021/00261157, 2021/00261163, 2021/00261164, 2021/00261165, 2021/00261166,
2021/00261167, 2021/00261168, 2021/00261169,
2021/00261170, 2021/00261171, 2021/00261172,
2021/00261173, 2021/00261174, 2021/00261175,
2021/00261176
Publication restriction: Nil

JUDGMENT

Costs of abuse of process notices of motion

  1. M.&.S. Investments (NSW) Pty Ltd (the Prosecutor) commenced multiple private prosecutions on 21 September 2021 of six Defendants in relation to the deposition of material on land at Edmondson Park. By notices of motion five Defendants – the First, Second and Sixth Defendants (Boutros Defendants), Mrs Carbone (Fourth Defendant) and Mr Carbone (Fifth Defendant) – alleged that the commencement of the prosecutions was an abuse of process and the prosecutions should be permanently stayed. In M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations(No 3) [2025] NSWLEC 30 (abuse of process judgment) I upheld that claim on the basis that the prosecutions were commenced for a collateral improper purpose and ordered a permanent stay of all prosecutions. I reserved costs. The Boutros Defendants and the Fourth and Fifth Defendants as the successful parties now seek their costs of their notices of motion and of the whole proceedings.

  2. The Boutros Defendants are jointly represented by their solicitor and counsel. Mrs Carbone Fourth Defendant is represented by the Fifth Defendant Mr Carbone as her agent. Mr Carbone represents himself. The Fourth and Fifth Defendants were legally represented at earlier stages of the prosecutions. I note for completeness that the abuse of process judgment did not consider the Third Defendant (see [3] in that judgment) and nor does this judgment. Any reference to the Defendants in this judgment does not include the Third Defendant.

  3. The charges against all the Defendants under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) were:

  1. section 115(1)- disposal of waste - harm to the environment;

  2. section 142A(1)- pollution of land;

  3. section 143(1)- unlawful transporting or depositing of waste;

  4. section 144AAA(1)- unlawful disposal of asbestos waste.

  1. An additional charge under s 144(1)(b) of the POEO Act, use of a place as a waste facility without lawful authority, was commenced against the Third, Fourth and Fifth Defendants.

  2. The various prosecutions were summary criminal proceedings commenced under Part 8.2 of the POEO Act. Costs in criminal cases are regulated under the Criminal Procedure Act 1986 (NSW) (CP Act). It appears to be agreed that the provision for costs to be awarded to an accused person as provided in s 257C(3) of the CP Act if an order dismissing a charge is made does not apply in circumstances where a prosecution has been permanently stayed based on Director-General, Department of Environment and Climate Change v Gleeson (No 2) (2009) 213 A Crim R 37; [2009] NSWLEC 200 (Gleeson). In Gleeson the defendants had made an application for criminal proceedings to be permanently stayed which was upheld. They then sought their costs. Lloyd J considered in the context of s 253 of the CP Act (since repealed with the insertion of Chapter 4, Part 5, Division 4 including s 257C) that the statutory power to award costs did not extend to the making of an order for a permanent stay of a prosecution, at [24]-[37]. Lloyd J then considered whether the Court had an implied jurisdiction to award costs in the exercise of the Court’s discretion as a superior court, finding that it did, at [38]-[53]. That is the basis on which costs are sought by the Defendants which I did not understand to be disputed by the Prosecutor.

  3. I note that the Boutros Defendants appeared to submit that s 257C(3)(c) could apply in this circumstance but I did not understand that was pressed.

  4. Following the filing of evidence and submissions by the parties in accordance with orders made on 15 April 2025, a mention was held on 2 June 2025 in order to clarify the parties’ respective positions. The Defendants argued an award of costs should encompass all the costs of all the proceedings not just those costs incurred in relation to the abuse of process notices of motion. The Prosecutor accepted it could be liable for the costs of the abuse of process notices of motion. It disputed it could be liable for the costs of the whole of the proceedings. It also disputed that costs if awarded should be payable on an indemnity basis (whether indemnity costs are in fact claimed will be discussed further below). The parties were given leave to file additional limited evidence and make limited submissions in relation to the Defendants’ claim for costs for the whole of the proceedings. If such orders are made, costs would include those incurred by the Defendants in relation to earlier determinations of various notices of motion filed by them and the Prosecutor. As requested by the parties I have endeavoured to deal with the matter on the papers as much as possible so that matters of evidence that might have otherwise been the subject of cross-examination for example are not before me and I make that observation as I deal with several objections to affidavit evidence of the Prosecutor below.

Evidence

  1. All parties read affidavits which substantially overlapped in providing a chronology of events. The affidavits provide the basis for the chronology below. Eight objections were taken to parts of the affidavits by the Prosecutor which I rule on in the course of this judgment. As requested by the parties I have endeavoured to deal with the costs issues on the papers as much as possible so that matters of evidence that might have otherwise been the subject of cross-examination for example are not before me.

Chronology

  1. On 11 September 2021 multiple prosecutions were commenced by the Prosecutor. The Boutros Defendants were charged with four offences each. The Fourth and Fifth Defendants were charged with five offences (four overlap with the Boutros Defendants).

  2. On 21 October 2021 Mr Malke Boutros solicitor for the Boutros Defendants sent a letter requesting the Prosecutor withdraw or otherwise abandon the proceedings against the Boutros Defendants on the basis that they were an abuse of process. Mr Boutros said the Boutros Defendants would not seek costs if the proceedings were withdrawn or otherwise abandoned.

  3. On 6 December 2021 the Boutros Defendants filed a notice of motion seeking the strike out or permanent stay of all prosecutions as an abuse of process.

  4. On 6 December 2021 the Fourth Defendant filed a notice of motion seeking various orders including that the prosecutions were time-barred which was subsequently amended on 22 December 2021. The Fifth Defendant filed a notice of motion dated 7 December 2021 seeking similar relief which was amended on 23 December 2021.

  5. The notices of motion filed by the Fourth and Fifth Defendants as amended on 22 and 23 December 2021 sought orders for strike out, or in the alternative permanently staying, all prosecutions as:

  1. charges time-barred pursuant to s 216(2) of POEO Act, alternatively

  2. charges duplicitous,

  3. uncertain/not known to the law or

  4. an abuse of process.

  1. The prayers in (a) and (c) were considered at the same time as the Boutros’ motions. (I note that according to the Fourth and Fifth Defendants’ prayers (b) duplicitous and (c) relating to charges being uncertain are to be reserved as these are yet to be determined.)

  2. On 14 January 2022 notices of motion were filed by the Boutros Defendants seeking orders that various prosecutions were time-barred (NOM 1). Leave was granted by Pepper J to rely on pars 1-12 of NOM 1 as amended on 7 February 2022.

  3. Following service of a notice to produce by the Fourth Defendant on 10 December 2021, on 27 January 2022 the Fourth Defendant filed an amended notice of motion seeking disclosure of documents sought by the notice to produce served on the Prosecutor. The Prosecutor filed a competing notice of motion on 27 January 2022 seeking to set aside the notice to produce and the amended notice of motion.

  4. On 1 February 2022 in M&S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24 (the disclosure of documents judgment) Duggan J made orders requiring compliance with pars 1 and 2 of the notice to produce as amended and dismissed the Prosecutor’s notice of motion filed 27 January 2022. Costs of both notices of motion were reserved.

  5. On 7 February and 7 March 2023 the time bar prayers in the various notices of motion (collectively, the time bar motions) were heard. On 16 June 2023 in M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 (the time bar decision) the motions were upheld. All proceedings except for the charges brought under s 144AAA of the POEO Act were dismissed and the Prosecutor was ordered to pay each of the Defendants’ professional costs of the dismissed proceedings.

  6. On 7 February 2024 the Court of Appeal upheld the appeal of the time bar decision in M.& S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17 (the time bar appeal). The Boutros Defendants and the Fourth and Fifth Defendants were ordered to pay the Prosecutor’s costs.

  7. On 4 April 2023 the Fifth Defendant filed a notice of motion to set aside the subpoena for production issued by the Prosecutor. I upheld that notice of motion on 28 April 2023 in an ex tempore judgment.

  8. On 12 October 2023 the Boutros Defendants filed a notice of motion seeking an order that the s 144AAA charges were not known to law (NOM 2). A separate notice of motion dated 13 October 2023 filed by the Fourth and Fifth Defendants’ then solicitors sought the same relief. The Prosecutor filed a separate notice of motion on 13 October 2023 which sought to amend all five summonses.

  9. On 13 October 2023 Mr Boutros solicitor for the Boutros Defendants sent a letter requesting the Prosecutor withdraw the s 144AAA charges against the Boutros Defendants on the basis that they were not known to law stating that the Boutros Defendants would bear their own costs if the charges were withdrawn.

  10. NOM 2 and the two notices of motion filed on 13 October 2023 (collectively the not known to law motions) were heard on 16 October 2024 by me. On 20 October 2023 in M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2) [2023] NSWLEC 111 I held that the s 144AAA charges were not known to law (i.e. no offence) and dismissed the Prosecutor’s notice of motion to amend the summonses.

  11. The appeal of that judgment by the Prosecutor was upheld on 19 June 2024 in M.& S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations [2024] NSWCA 151 (the not known to law appeal) and the Prosecutor’s notice of motion dated 13 October 2023 was remitted for further determination. Costs orders were made.

  12. A further notice of motion seeking the stay of all proceedings due to them being an abuse of process was filed on 6 September 2024 by the Boutros Defendants (NOM 3).

  13. On 7 November 2024 Mr Boutros solicitor for the Boutros Defendants sent a letter requesting the Prosecutor discontinue the proceedings on the basis they were an abuse of process. The Boutros Defendants would not seek costs if the proceedings were discontinued.

  14. Prayer (d) alleging abuse of process in the amended notices of motion filed by the Fourth and Fifth Defendants as amended on 22 and 23 December 2021 and NOM 3 (collectively the abuse of process motions) were heard on 11‑14 November 2024 and upheld on 4 April 2025 in the abuse of process judgment. Costs were reserved.

Mr Malke Boutros’ affidavits

  1. An affidavit of Mr Boutros affirmed 2 May 2025 set out steps taken in the prosecutions including various notices of motion heard since the commencement of prosecutions (set out above) and provided a total of the costs incurred in relation to the prosecutions by the Boutros Defendants including all the notices of motion of approximately $183,215.75. Three different offers to resolve the matter were made on the basis that the prosecutions be withdrawn with each party to pay their own costs.

  2. The Prosecutor made numerous objections to this affidavit. Three objections related to the letters of offer sent by Mr Boutros on 21 October 2021, 13 October 2023 and 7 November 2024 on the basis these were irrelevant and prejudicial which justified an exclusion under s 135 of the Evidence Act1995 (NSW) (Evidence Act). A principal reason for the objection was that the offers related to different circumstances as at the time the prosecutions were commenced the basis for alleging abuse of process was failure to comply with s 219(1) of the POEO Act. As the abuse of process motions were not argued before me on that basis these letters were said to be irrelevant. This is an application for costs of the whole proceedings and generally the history of the litigation, of which these letters form a part, would be expected to be before the Court. I do not consider there is any basis to exclude these entirely. The matters raised in the Prosecutor’s objection can be noted.

  3. The fourth objection related to various invoices for legal costs incurred in relation to several notices of motion on the grounds these were irrelevant or should be excluded under s 135 of the Evidence Act. That objection is not upheld given that the invoices are relevant to the application for costs by the Fourth and Fifth Defendants and no basis to apply s 135 was identified or can arise in my view in this costs application.

  4. The fifth objection related to pars 21-22 describing the alleged failure of the Prosecutor to accept the settlement offers the subject of objections 1, 2 and 3 which were said to be submission. I do not agree and those paragraphs can be read. Paragraph 23 is a submission and can be read on that basis.

  5. A second affidavit of Mr Boutros dated 8 July 2025 annexed transcripts of the hearing before Pepper J of the time bar motions on 7 February 2022 and 7 March 2022 (see above in [13], [15], [18]). Parts of that affidavit dealing with the time bar motions were objected to by the Prosecutor (pars 10-13) (sixth objection) on the basis these were conclusion and submission. Paragraphs 10‑13 stated that prior to the hearing the parties and Pepper J agreed to only deal with the time bar motions on the allocated hearing date and defer hearing the abuse of process motions. Mr Boutros stated that to the best of his knowledge and belief this was done firstly because there was not enough court time to hear the abuse of process prayers and if the Defendants succeeded on the time bar motions there would be no need to determine the abuse of process motions. Secondly the Fourth and Fifth Defendants were not ready to proceed as they had sought orders for disclosure, with those orders being made by Duggan J in the disclosure of documents judgment on 1 February 2022 only a week before the hearing of the time bar motions. None of that evidence appears objectionable given Mr Boutros, the solicitor on the record for the Boutros Defendants, was involved in the proceedings on that basis and that such matters would be within his knowledge.

  6. Mr Boutros’ statement (par 13) that there was no forensic decision by the Boutros Defendants not to proceed with the abuse of process motions at the same time as the time bar motions was objected to by the Prosecutor on the basis that the statement was conclusive and a submission. I agree that the statement is objectionable in that it is unsupported. Mr Boutros also stated (par 20) that there was no decision to not hear the abuse of process motions at the time of the not known to law motions as the intention of all the parties including the Prosecutor was that the abuse of process motions would only be heard if the not known to law motions were unsuccessful. The Prosecutor also objected to that statement (seventh objection) as its probative value was substantially outweighed by the danger the evidence would be unfairly prejudicial, misleading or confusing, was conclusive and a submission. I agree that the statement is potentially objectionable in that it is unsupported. Given that this is a costs application largely considered on the papers I will allow these parts of the affidavit which are potentially objectionable to be read. As I discuss further below such evidence is ultimately of little consequence.

  7. Parts of the affidavit which dealt with changes sought to be made to orders of Pepper J following her Honour’s time bar decision at pars 14-16 were objected to as irrelevant, and unfairly prejudicial under s 135 of the Evidence Act (seventh objection). These paragraphs referred to an email from the Fourth Defendant’s solicitor concerning the need for amended orders in relation to the abuse of process motions. Given these appear to be steps that were taken by parties in the proceedings and they are a relatively minor part of the history of the litigation they can be read.

Consideration of transcript of 7 February 2022

  1. Justice Pepper stated early in the hearing on 7 February 2022 that it was agreed before the hearing that only the time bar issue would be heard.

  2. Counsel appeared for the Boutros Defendants at the hearing before Pepper J on 7 February 2022 of the time bar motions and sought leave to amend the notice of motion filed on 14 January 2022. In the course of discussion on that application, which the Prosecutor opposed because it submitted two new paragraphs seeking relief in relation to abuse of process were hopeless, counsel did not seek to press that relief. Mr Nyugen’s second affidavit dated 22 July 2025 annexed the relevant notice of motion. It is clear from the transcript of 7 February 2022 that at a pre-trial mention Pepper J intended that only the time bar issue would be dealt with on 7 February 2022.

  3. Counsel for the Fourth Defendant also withdrew paragraphs in the relevant motion seeking relief on the basis of abuse of process. At that stage the Fourth Defendant was seeking to argue that s 219 of the POEO Act was not satisfied at the time the prosecutions were commenced. Ultimately a notice of motion filed on 6 December 2021 was pressed which sought an order that the proceedings be struck out on the basis that they were time-barred. Mr Nyugen’s second affidavit annexed the relevant notice of motion.

  4. Similarly in relation to the Fifth Defendant’s notice of motion the abuse of process ground was not pressed by Mr Boncardo of counsel. Mr Nyugen’s second affidavit annexed the relevant notice of motion.

Mr Nyugen’s affidavits

  1. An affidavit of Mr Nguyen dated 21 May 2025 set out an overlapping chronology of events with some additional events, which were included in the chronology above. Mr Nyugen’s second affidavit dated 22 July 2025 annexed a number of notices of motion referred to in the chronology above.

Mr Carbone’s affidavit

  1. An affidavit of Mr Carbone dated 8 July 2025 in support of his application for all of the costs of the Fourth and Fifth Defendants to be payable by the Prosecutor also set out numerous events. It was objected to (eighth objection) in its entirety on the basis that it did not comply with court orders about the content of affidavits (which submission was incorrect). The affidavit was said to contain hearsay, submission, conclusion and to be inadmissible under s 135 as it might be unfairly prejudicial, misleading or confusing inter alia. As Mr Carbone identified, in addition to stating that the affidavit complied with the topic permitted by the Court (as it does) no specific paragraphs were identified so that in the absence of specific matters being raised the Defendants cannot address the generalised objection.

  2. A large part of the affidavit set out a procedural history of the prosecutions from 11 September 2021 which appears unobjectionable on a costs application. Particular mention was made of Duggan J’s disclosure of documents judgment and her observations about the requirement of disclosure by a prosecutor. Mr Carbone stated that it became apparent that one of the charges could not be properly maintained as the legislation enacting the offence did not come into effect until a much later date. A separate notice of motion dated 13 October 2023 was lodged by his then solicitors which was considered on 16 October 2024 with judgment on 20 October 2024 upholding the notice of motion. According to Mr Carbone the abuse of process motions were due to be determined on 16 October 2023.

  3. I do consider pars 27-31 to which objection was taken by the Prosecutor are submissions and have read them on that basis. These are set out below at [49]‑[51]. The rest of the affidavit appears unobjectionable in the context of this costs application.

Boutros Defendants’ submissions

  1. The Boutros Defendants are entitled to their costs for the entirety of proceedings not just costs for abuse of process motions which were determined in the abuse of process judgment. A notice of motion seeking a stay of all proceedings for abuse of process was filed on 6 December 2021 approximately 3 months after the commencement of the prosecutions on 21 September 2021. The Prosecutor commenced these prosecutions against the Boutros Defendants for improper purposes and they have been maintained for a number of years. The Boutros Defendants should be placed in the same financial position that they would have been in if these prosecutions had not been commenced.

  2. Additional poor conduct of the Prosecutor warrants a costs order for the whole proceedings. The following conduct of the Prosecutor supports that submission:

  1. the Prosecutor acted in breach of the Bar Rules and the Prosecution Guidelines: abuse of process judgment at [165]-[170];

  2. the Prosecutor was found to have failed to act in accordance with its duty of disclosure: abuse of process judgment at [170];

  3. the Prosecutor sought to agitate notices of motion to summarily strike out the Defendants’ notices of motion and to prevent them from being determined on their merits and after the hearing of evidence: abuse of process judgment at [7]. It is extraordinary that the Prosecutor would seek to summarily prevent the Court from determining an application made to control an abuse of its own processes without hearing that application on its merits. It is even more egregious that the case relied upon by the Prosecutor for such a step was in fact not authority for its position at all: abuse of process judgment at [7];

  4. the Prosecutor made serious and unsubstantiated allegations against the Defendants and their legal representatives under privilege and without any proper basis: abuse of process judgment at [160], [172], [173];

  5. the Prosecutor sought to have the Boutros Defendants sign an agreement which would waive their rights to legal professional privilege or the privilege against self-incrimination: abuse of process judgment at [57]; and

  6. the Boutros Defendants have been drawn into the proceedings in circumstances where they were, at best, only tangentially involved to the primary dispute between the Prosecutor and the Fourth and Fifth Defendants.

  1. It is accepted that if the abuse of process motions were not heard earlier due to a forensic decision by the Boutros Defendants, then this would be a factor that would weigh against the award of costs for the whole of the proceedings. However there was no such forensic decision made when the time bar motions were determined nor at the time the not known to law motions were determined.

  2. The abuse of process motions were not heard at the same time as the time bar motions for two reasons. First, the parties had agreed to that course due to the available court time and the understanding that the abuse of process motions would be otiose if the time bar motions succeeded, as confirmed by the transcript of that hearing. The parties and the Court were proceeding on a common assumption that the abuse of process motions would not be determined on that day and would be deferred to another day if the time bar motions were unsuccessful. Secondly, the Fourth and Fifth Defendants were not in a position to deal with the abuse of process motions due to the failure of the Prosecutor to disclose documents.

  3. Secondly in the disclosure of documents judgment Duggan J makes clear at [13]-[14] that the material sought to be disclosed by the Fourth and Fifth Defendants was necessary for the determination of the abuse of process application.

  4. Further no forensic decision to not prosecute the abuse of process motions was made at the hearing of the not known to law motions on 16 October 2023. The Prosecutor’s appeal against the time bar decision had not been heard at that time.

Fourth and Fifth Defendants’ submissions

  1. Costs of the whole proceedings are sought by the Fourth and Fifth Defendants. The abuse of process was significant with the criminal process being used to obtain commercial advantage. The prosecutions have been permanently stayed. As a result of the nature and extent of that abuse the costs of the whole proceedings ought be paid on an indemnity basis (later modified as discussed in [76]). The prosecutions have caused significant legal expense and result in unfairness to the Defendants if costs are not ordered on an indemnity basis.

  2. The conduct of the Prosecutor was deliberate and consequential on counsel’s advice, as was clear from the evidence at the hearing of Mr Bilaver its director. The significant costs incurred by the Defendants could have been avoided if the criminal jurisdiction of the Court had not been misused for a civil dispute.

  3. The abuse of process motions were not able to be pursued at the same time as the time bar motions as orders for disclosure of documents were made only a week before the time bar motions were to be heard.

Prosecutor’s submissions

  1. The Prosecutor resists an order for costs in the Defendants’ favour for the costs of the whole proceedings on any basis including on an indemnity basis. No basis for making such an order is provided by the Defendants.

  2. As to the whole proceedings it is irrelevant when the notices of motion alleging abuse of process were heard as it was clearly the forensic decision of the Defendants to agitate the prayers in their motions in the order they have been pressed. None of the evidence sought to be adduced by the Boutros Defendants is able to delineate what proportion of costs said to be incurred can properly arise in relation to each of the time bar or not known to law motions pressed by the Defendants, the appeals of which were successful. Any costs incurred by the Defendants cannot be said to have followed the event.

  3. The Prosecutor submits that it is also relevant to note that the first mentioned offer to settle (21 October 2021) related to circumstances and assertions made by the Boutros Defendants which never arose, nor were pressed in any court of law. They cannot be relevant to this costs application following the abuse of process judgment, and the basis upon which it was determined. This is because the Boutros Defendants’ offer was made on a different basis, namely the assertion that there was an abuse of process in that the leave that was granted by Moore J to commence the prosecutions was invalid as ss 219(2)(c) and (d) of the POEO Act were not complied with. This assertion was never pressed by the Boutros Defendants or the Fourth and Fifth Defendants.

  4. The Prosecutor submits that the second offer to settle (13 October 2023) is not relevant to this costs application, as it related to the nullity issue (the not known to law motions), which was also ultimately determined by the NSW Court of Appeal against the Boutros Defendants and the Fourth and Fifth Defendants. The Prosecutor submits that the third offer made by the Boutros Defendants (7 November 2024) relating to the abuse of process motions is not a Calderbank offer and cannot be said to justify an indemnity costs order for the entire prosecutions or on a more limited basis.

  5. The statements that no forensic decisions were made lack any basis in the evidence and the transcript of the hearing on 7 February 2022. Counsel then acting for Boutros Defendants made the decision not to agitate the abuse of process motions when the time bar motions were argued. Leave to amend the motion at the hearing on 7 February 2022 related only to the time bar issue. Only the time bar motions were pressed on 7 February 2022 and that is consistent with comments of Pepper J that only the time bar issue would be heard on that day. Obviously a decision had been made by all those parties to agitate that issue first as the moving parties on their motions. Such a decision was made earlier by the Defendants and that was the understanding of the parties and the Court. There is a gap in the evidence as no transcript is available of what occurred at the earlier pre-hearing mention, which undermines the first reason of the Boutros Defendants and the assertion at par 11 of the further Malke Boutros affidavit.

  6. As to the second reason that submission is misconceived and there is no basis to find that the Prosecutor failed in its duty of disclosure (this goes beyond the Defendants’ submissions which as I understand them are that material the subject of the Fourth Defendant’s notice of motion was needed for the abuse of process motions as then conceived), at that time there was no assertion of abuse of process based on an improper collateral purpose as considered in the abuse of process judgment. The focus was on the application of s 219(1) of the POEO Act at the time the prosecutions were commenced.

  7. It is very telling to note that the Boutros Defendants first alleged abuse of process as early as 6 December 2021. The Fourth Defendant first alleged abuse of process, in terms, in its notice of motion filed 22 December 2021, prayer 1(d). The Fifth Defendant first alleged abuse of process in its notice of motion dated 7 December 2021. In spite of being filed on 12-13 October 2023, well after the abuse of process motions were filed by the Defendants, they chose to move on the not known to law motions first before the abuse of process motions. Nothing supports the making of costs orders for the entirety of the proceedings. The Defendants have to date been ultimately unsuccessful on almost all issues advanced other than in the recent abuse of process judgment in 2025.

Partial award of costs to be ordered

  1. The prosecutions were summary proceedings under the POEO Act. As noted above in [5] the parties appeared to agree the Court has implied jurisdiction to award costs where proceedings are permanently stayed, as found in Gleeson. Costs are compensatory not punitive; Latoudis v Casey (1990) 170 CLR 534 at 567; [1990] HCA 59.

Costs of abuse of process notices of motion payable by Prosecutor

  1. As the successful parties on their respective abuse of process motions determined in April 2025 the Defendants should obtain costs incurred for those motions. The Prosecutor accepts that an appropriate costs order is that the Prosecutor pay the costs of the abuse of process motions on the ordinary basis as agreed or assessed. What is the ordinary basis in criminal matters is discussed further below.

Prosecutor’s notices of motion considered in abuse of process judgment

  1. A discrete matter to consider are the Prosecutor’s notices of motion seeking to have the Defendants’ notices of motion alleging abuse of process permanently stayed, as considered at [22] of the abuse of process judgment. In that paragraph I determined that the Prosecutor’s notices of motion should be determined after the Defendants’ notices of motion and declined to adopt the procedure the Prosecutor argued for. Having resolved the Defendants’ notices of motion I dismissed the Prosecutor’s notices of motion in 22 matters. It is appropriate that the Defendants have their costs of defending the Prosecutor’s notices of motion paid by the Prosecutor.

Whether Defendants’ costs of whole proceedings ought be paid by Prosecutor

  1. A substantial issue in dispute is whether the Defendants should be able to claim their legal costs for the whole proceedings which commenced on 11 September 2021. The Defendants argue they should be placed in the financial position they should be in as if no prosecutions had been commenced and such an order would achieve this.

  2. Also considered in Gleeson, reflecting the amount claimed, was whether any order for costs should extend beyond the costs of the successful notice of motion which resulted in the proceedings being stayed to include partial costs incurred in the principal proceedings; Gleeson at [55]-[60]. Justice Lloyd considered that in all the circumstances an order for costs of the whole proceedings was not appropriate. In fact the defendants did not seek all the costs of the proceedings from the commencement of the prosecution. It appeared to be accepted that the notice of motion was filed late in the proceedings being filed some three years and two months after their commencement; Gleeson at [58]. Lloyd J ordered the prosecutor to pay additional costs in the principal proceedings for a limited period. As occurred in Gleeson, the particular circumstances of the proceedings must be considered in determining the appropriate costs order.

Conduct of proceedings overall

  1. As emphasised by the Defendants, their respective notices of motion seeking a permanent stay of proceedings on the basis of abuse of process were filed promptly, by the Boutros Defendants on 6 December 2021, by the Fourth Defendant on 22 December 2021 and the Fifth Defendant on 7 December 2021. As emphasised by the Prosecutor, at that time the basis for the abuse of process argument was that the application made to commence the prosecutions under s 219(1) of the POEO Act did not satisfy the requirements of the section, which case was not ultimately pressed. The abuse of process motions argued on the basis of an improper and collateral purpose before me were not heard until November 2024, some three years after the prosecutions were commenced. Various other interlocutory motions were heard before the abuse of process motions, as set out in the chronology and referred to in the parties’ submissions. The time bar motions and the not known to law motions were the focus of lengthy evidence and submissions. What was not dealt with adequately in the Defendants’ submissions is that costs orders were made in relation to these notices of motion in the Court of Appeal which cannot be disturbed by the general order sought by the Defendants in my view.

  2. The time bar motions filed by the Defendants obtained a judgment in favour of the Defendants at first instance, the time bar decision being delivered in June 2023. The Prosecutor’s application at about the same time for the issue of a subpoena was denied in an ex tempore judgment dated 28 April 2025. Both decisions were appealed by the Prosecutor. In the time bar appeal the Court of Appeal considered both appeals by the Prosecutor and made the following orders including costs orders (at [118]):

(4) uphold the appeal against the decision of Pepper J…

(6) refuse leave to appeal against the decision of Pain J of 28 April 2023…

(8) order the respondents pay the appellant’s [Prosecutor’s] costs of the two proceedings to appeal and review the decision of Pepper J; and

(9) order the appellant to pay the fourth respondent’s costs of the two proceedings to appeal and review the decision of Pain J.

  1. These costs orders stand, requiring the Defendants to pay the costs of the Prosecutor in relation to the time bar decision. There is no capacity to vary them now.

  2. Notices of motion filed by the Defendants alleging the asbestos offences against s 144AAA were not known to the law were successful in the Court, with judgment in favour of the Defendants in October 2023. In the not known to law appeal the Court of Appeal upheld the Prosecutor’s appeal, set aside the orders dismissing summonses in various proceedings, set aside the costs order made at first instance, remitted the notice of motion dated 13 October 2023 for redetermination in accordance with the judgment and held there should be no costs order for the judicial review proceedings or the s 5F appeal pursuant to the Criminal Appeal Act 1912 (NSW). As the orders in the Court of Appeal which set aside the costs orders made at first instance stand there is no capacity to make a different costs order now. As a result of existing costs orders I do not consider that I can order the costs of the whole proceedings to the extent these concern the time bar motions and the not known to law motions.

  3. I note that while I have allowed Mr Boutros’ evidence stating that no forensic decision was made to delay the abuse of process motions until after the time bar motions and the not known to law motions, precisely what is meant by that statement is not clear. If forensic is meant to convey a deliberate decision about when the abuse of process motions would be determined that must be viewed in the context of how the proceedings unfolded. Based on the transcript of 7 February 2023 the clear inference arises that the parties and the Court agreed at an earlier mention that only the time bar motions would be heard that day. No transcript of that earlier mention is before the Court. On 7 February 2023, counsel for the Boutros Defendants did not press pars 13-14 of the notice of motion which raised abuse of process, and the other Defendants acted similarly in relation to their respective notices of motion. Whether or not a clear forensic decision was made appears to be irrelevant in the sense that the events speak for themselves.

  1. The time bar motions were apparently heard first for case management purposes. One day of hearing had been allocated and a second hearing day was also necessary. I note that the abuse of process motions hearing before me was listed for four days. Even if the abuse of process motions had been listed for hearing there was no time to hear them in the time allocated.

  2. That the Fourth and Fifth Defendants could not proceed with the abuse of process motions because of orders made a week before in the disclosure of documents judgment can be accepted as another explanation for why the matter did not proceed. I do not consider that there is any particular criticism of the Prosecutor by Duggan J in the judgment contrary to what the Fourth and Fifth Defendants appeared to be submitting as another basis for why costs of the whole proceedings should be ordered payable.

  3. The Defendants proceeded with the not known to law motions in relation to the s144AAA(1) charges in October 2023. The progress of these motions arose from decisions made by all the Defendants. Those decisions meant that the abuse of process motions were further postponed. Whether that was deliberate or not is immaterial. Mr Boutros’ submission that no forensic decision was made to not pursue the abuse of process motions at the time the not known to law motions were filed and progressed has no relevant weight in the circumstances.

  4. Ultimately various notices of motion were filed by the Prosecutor, and more so by the Defendants. These have had varying legal outcomes over the three years until the abuse of process motions argued by the Defendants on the basis of improper collateral purpose were heard in November 2024. The timing of the determination of any motion is largely in the hands of the moving party subject to the Court’s case management considerations.

  5. Other notices of motion were filed by the parties. A notice of motion filed by the Fourth Defendant pursuant to a notice to produce seeking disclosure of documents in relation to the abuse of process motions (then on the basis that s 219(1) of the POEO Act was not satisfied) and a notice of motion filed by the Prosecutor alleging that the notice to produce issued by the Fourth Defendant was an abuse of process was determined in the disclosure of documents judgment in February 2022. The Prosecutor’s notice of motion, subject to the amendment of the notice to produce made during the hearing, was dismissed. The disclosure of documents judgment referred to the ongoing obligation of disclosure of the Prosecutor. Orders to produce documents in accordance with the amended notice of motion were made. Costs of both notices of motion were reserved. Given that the basis for seeking disclosure of documents by the Fourth Defendant in relation to her abuse of process motion was not the basis of the argument before me, it is not apparent why a costs order ought to be made in the Fourth Defendant’s favour in relation to this notice of motion.

Conclusion on extent of award of costs

  1. The Defendants sought to justify costs for the whole proceedings on the basis of the reasons why I found that the various prosecutions gave rise to an abuse of process in that they were commenced for an improper collateral purpose, as set out extensively in the abuse of process judgment at [111]-[171]. I also expressed the view in the abuse of process judgment that the administration of justice could be brought into disrepute because of various actions by the Prosecutor, at [165]. While the Defendants’ claim for costs for the whole proceedings is understandable, these submissions do not assist the Defendants in obtaining a costs order for the whole proceedings because of the history of the litigation considered above. While the abuse of process motions were filed early in the prosecutions they were not dealt with for three years and other motions were progressed as I have considered above. I conclude that the Defendants should have all their costs incurred in relation to the abuse of process judgment, which includes any costs incurred in relation to the Prosecutor’s notices of motion also considered in that judgment.

  2. Lastly the Defendants have incurred costs in seeking orders for costs. They have not been entirely successful in their arguments. I will make a partial costs order whereby the Prosecutor must pay half of the Defendants’ costs of the Defendants’ costs application.

Costs payable on what basis?

  1. The Boutros Defendants seek their total professional costs in the usual way these are paid in criminal proceedings meaning as I understand their submissions their reasonable professional costs as agreed or assessed. This could mean more than party-party costs but not as much as indemnity costs as I understood their submissions. The Fourth and Fifth Defendants initially sought orders that any costs be payable on an indemnity basis. This was clarified in oral submissions to mean that they also sought orders on the same basis as the Boutros Defendants, not on an indemnity basis. It is not apparent that costs can be ordered to be payable on an indemnity basis under the CP Act in the absence of an express provision in any event.

  2. The Prosecutor opposed the award of costs on what it submitted was effectively an indemnity basis even if that was not sought expressly. The Prosecutor submitted this was because the matters relied on by the Defendants sought to establish some unreasonable action including misconduct in connection with the conduct of the proceedings by the Prosecutor which are matters relevant to the award of indemnity costs in a civil context.

  3. Given my findings above whereby only a partial order for costs will be made, professional costs will be ordered to be payable as is usual in criminal proceedings.

Order

  1. The Court orders:

  1. The Prosecutor is to pay the First, Second, Fourth, and Fifth Defendants’ professional costs of the notices of motion determined in M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations(No 3) [2025] NSWLEC 30 as agreed or assessed.

  2. The Prosecutor is to pay half of the First, Second, Fourth, and Fifth Defendants’ costs of the application for costs awarded in order 1.

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Decision last updated: 20 October 2025

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