Masters v Lombe (liquidator), in the matter of Babcock & Brown Limited (in liq) (Lump Sum Costs)

In the case of Masters v Lombe (liquidator), in the matter of Babcock & Brown Limited (in liq) (Lump Sum Costs), the applicant sought a determination on a lump sum basis for existing costs orders made in a series of related primary and appeal proceedings. The court was called upon to decide whether it had the jurisdiction to make lump sum determinations in respect of existing cost orders and to quantify these determinations. The primary judge had retired, and the application for a lump sum determination was made after special leave applications were dismissed. The issue of whether the existing costs orders should be determined on a lump sum basis proved contentious, with the respondents insisting on a contested oral hearing. The court examined the relevant legal principles, including the broad discretion of the court to award costs and the power to award costs on a lump sum basis, as provided in sections 43(3)(d) and 40.02 of the Act and rule 40.02 of the Rules. The court also considered the decision in Backo v Australian Competition and Consumer Commission, which held that a single judge does not have the power to vary or go behind the orders of the Full Court in respect of costs.

After considering the arguments and the legal principles, the court determined that the parties should bear their own costs of the application. The court found that while the application was unorthodox, the applicant had succeeded in substance. The court made orders for the lump sum determinations, specifying that a Registrar of the Court acting as a Referee would quantify the lump sum determinations. The court also outlined the process for the inquiry, the contents of the Referee's report, and the consideration of the report by the case managing judge. The parties were directed to bear their own costs of the interlocutory application.

In conclusion, the court granted the application for lump sum determinations and specified the manner in which these determinations would be quantified, ensuring that the process was efficient and practical. The court also directed that the parties bear their own costs of the application, reflecting the unorthodox nature of the proceedings.