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[2026] NSWCA 189
procedural. The $25,000 security was ordered released to Keybridge, and Bolton was ordered to pay $6,500 in Keybridge’s costs of the motion, excluding the costs of material supplied in reply.
Bolton had placed $25,000 in court to secure costs connected with Keybridge's administration during a stay pending appeal. Keybridge established that the full security could be paid to it, and Bolton's proposed set-off did not defeat the purpose of that security. However, Keybridge's application for the money was supported initially by evidence with errors and omissions, which caused extra procedural work. Although Keybridge succeeded on payment, it did not recover all the costs it claimed. The judge fixed recoverable costs at $6,500, excluding the costs of material supplied in reply, because the amount claimed was disproportionate to the straightforward task and the sum at stake.
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2,050 words · generated 08/10/2026
This judgment determines the remaining issues on a motion by Keybridge Capital Ltd concerning $25,000 paid into court by Nicholas Bolton. The security related to costs of Keybridge's administration during a short stay obtained by Bolton pending appeal. The underlying stay and the original security arrangement are described by reference to the earlier decision, [2025] NSWCA 81, orders 2-4 ([1]).
3 cited instruments linked from this judgment.
The immediate question was whether Keybridge could have the security paid to it. In an earlier judgment, the court had concluded that Keybridge's evidence in chief established an entitlement to more than $18,500. Further material was then provided in reply to establish additional costs incurred by counsel and solicitors. The judge had said that, if the reply material could be considered, the administration costs exceeded $25,000. Because Bolton asserted serious prejudice from the late material, he was allowed to file further submissions or evidence ([2]).
Bolton made five points against payment. He challenged the particularisation of the legal fees and their reasonableness and necessity; argued that he should receive protections similar to those of a direct client; objected to Keybridge receiving priority over other parties; and claimed a possible right of set-off based on salary he said was owed to him ([3]). The judge rejected those arguments. The relevant issue was not whether the lawyers were entitled to every amount they billed, but whether Keybridge had established an entitlement to draw the security ([4]).
The court ordered that the whole $25,000 be released to Keybridge. On costs, Keybridge had sought all of its motion costs and a gross sum order. The judge found that Keybridge had succeeded on the payment question but that its evidence and preparation had caused unnecessary additional work. The order therefore required Bolton to pay the motion costs, excluding the costs of reply material, quantified at $6,500 ([23]).
On entitlement to the security, the judge focused on the purpose and scope of the order securing Bolton's undertaking. The question was whether costs in the relevant period exceeded the $6,500 not already established, and whether any real prejudice prevented Keybridge from relying on its further evidence ([4]). The judge accepted that an administrator might adopt a restrained approach during an extension of an administration, but considered it reasonable for the administrator to retain solicitors and for those solicitors to retain counsel in the Court of Appeal proceedings. On the material, the hourly rates and time spent appeared prima facie reasonable, and the judge was comfortably satisfied that more than $6,500 in costs was reasonably necessary ([5]).
The decision did not determine the total indebtedness to the lawyers or resolve what fees they could ultimately recover. The judge stressed that the application concerned only Keybridge's entitlement to draw on the security ([5]). That distinction matters: the order was not a final assessment of every legal bill, but a determination that the secured threshold had been established.
The priority argument failed because the security related to costs incurred after the stay, not costs incurred before it. The judge distinguished those two categories and held that only the later costs benefited from Bolton's security ([6]).
The set-off argument failed because, in the judge's view, it would defeat the purpose of the security. Bolton had offered the security and the secured undertaking was to pay administration costs for a limited period. The judge reasoned that an effective undertaking secured by $25,000 could not be qualified by a set-off that would undermine the security ([7]). The reasons refer to Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd for the proposition that parties may agree to exclude set-off. The judge also referred to Great Asia Maritime Ltd v Orion Shipping and Trading LLC, which described Gilbert-Ash as seminal on that point. The reasoning then applied the same general idea to the undertaking to the court, in its particular secured context ([7]).
The costs outcome involved a different balance. Keybridge succeeded, so Bolton was prima facie liable for some of its costs. But the judge considered that the application had been prepared inefficiently. The affidavit in chief exhibited about 205 pages and asserted, incorrectly, that the documents established more than $25,000 in relevant costs. The documents included errors, costs outside the relevant period, and double counting. That led to a further affidavit and additional submissions ([12]-[13]). The judge considered it unfair to make Bolton bear the costs generated by those deficiencies ([14]-[16]).
The court also considered the scale of the expense. Keybridge had spent more than $32,000 seeking access to $25,000 already lodged as security. The task, the judge said, was straightforward: show that the costs incurred in the relevant period met the amount secured. A short affidavit could have addressed the administrator's costs, including solicitor and counsel costs ([11]). The issue was therefore not simply whether Keybridge had incurred the claimed costs, but whether the work and expenditure were reasonably proportionate to the motion.
The judgment does not describe a change in the law or set out a comprehensive account of the law before and after this decision. Its contribution is an application of existing procedural and costs principles to this security motion.
For payment out of security, the reasons treat the terms and purpose of the particular security arrangement as central. Bolton's undertaking and payment into court supported a stay while the appeal proceeded. The judge held that the security covered the relevant post-stay administration costs and that a set-off inconsistent with the purpose of the security could not defeat payment ([6]-[8]). The judgment does not purport to establish that all undertakings or all security arrangements exclude set-off. Its reasoning is tied to the undertaking and security before the court.
For costs, the judgment applies the principle in s 60 of the Civil Procedure Act 2005 (NSW), which requires court practice and procedure to be implemented so that costs are proportionate to the importance and complexity of the matter in dispute ([22]). It also uses s 98(4)(c) to quantify the costs as a gross sum ([23]). The court drew on Hamod and Filby concerning when a gross sum order may avoid the expense, delay and aggravation of contested assessment ([17]). It also referred to Harrison v Schipp on avoiding further unrecoverable expense in obtaining a costs order ([19]).
The practical approach adopted was to identify what work ought reasonably to have been done, rather than apply a percentage discount to the invoices. The judge considered a motion, a short affidavit, and limited responsive work, then estimated a reasonable amount by reference to hours and rates ([20]-[22]). The judgment thus illustrates a method of applying proportionality and gross sum assessment; it does not announce that this method must be used in every case.
At [4], the judge identified the central payment question as whether the additional evidence established costs exceeding $6,500 and whether there was real prejudice to Bolton. In plain English, the court was not reopening every aspect of the administration's spending. It was deciding whether the extra evidence filled the remaining gap needed to justify release of the full security.
At [5], the judge said: “I am comfortably satisfied that Keybridge has established that it is entitled to the entirety of the security which has been paid into Court.” This expresses the conclusion on the security, based on the evidence of relevant costs and the judge's assessment that those costs were reasonably necessary.
At [7], the judge stated that an effective undertaking secured by the money “was” to be “unqualified by any set-off.” In plain English, Bolton could not rely on an asserted salary debt to neutralise the very security he had provided for the specified costs. The judge connected that conclusion to the purpose of the undertaking and security, while recognising that equitable defences are not lightly treated as abandoned.
At [20], the judge stated: “The starting point is to ask what costs should reasonably have been incurred.” This explains why the court did not simply take Keybridge's invoices and apply the percentage reduction it had proposed. The judge identified the appropriate work for the motion and valued that work.
At [22], the judge said: “The reasonable costs must be proportionate to what is at stake.” The dispute concerned payment from an existing $25,000 fund, not a trial or a claim for a new judgment of that amount. The amount and simplicity of the task were therefore important to the costs calculation.
The decision is most directly relevant to a situation where a party has provided money into court as security for a defined undertaking or costs obligation, and the beneficiary later applies for payment out. The reasons make the scope and purpose of the security important, including whether the costs were incurred during the period the security covered ([4]-[8]).
It may also be relevant where a party challenges payment by asserting a set-off against the obligation secured by an undertaking. The decision indicates that the court may examine whether the asserted set-off would undermine the undertaking's purpose, and whether the terms and context show that the secured obligation was intended to operate without that qualification ([7]). It does not resolve every possible set-off question, especially where the wording or circumstances of the undertaking differ.
The costs reasoning is relevant to motions where a successful applicant seeks all its costs despite having filed evidence that is incomplete, inaccurate, unnecessarily extensive, or requires later correction. Here, the initial material did not establish the amount asserted, contained errors and double counting, and led to reply evidence and further submissions ([12]-[16]). The court treated those consequences as relevant to what costs the unsuccessful party should bear.
Finally, the judgment is relevant where the costs of a discrete motion threaten to exceed the amount in dispute and a party seeks a gross sum order. The court may consider the amount at stake, the complexity of the motion, the work reasonably needed, and the expense of a detailed assessment ([17]-[22]).
The supplied judgment contains no citations to later decisions applying or distinguishing Bolton v WAM Active Ltd (No 4). It was decided on 10 September 2026, and the source text provides no subsequent treatment. It is therefore not possible, on this material, to describe how later courts have treated this decision.
The authorities discussed in the reasons are earlier decisions, not later treatment of this judgment. Hamod, Filby, Harrison and Pasade Holdings are used in the court's consideration of gross sum costs orders and assessment methodology ([17]-[20]). Gilbert-Ash and Great Asia Maritime are discussed in relation to exclusion of set-off ([7]). The earlier Bolton decisions provide the procedural background and the court's prior assessment of the evidence ([1]-[2]).
The judgment leaves open how the exclusion-of-set-off reasoning would apply to a differently worded undertaking, a security arrangement that expressly preserves set-off, or a case where the alleged counterclaim is not inconsistent with the purpose of the security. The court's conclusion was based on the undertaking and the $25,000 security in this matter ([7]).
The reasons also do not determine the total amount owed to the lawyers, or whether each billed item was recoverable from Keybridge. The judge expressly confined the decision to whether Keybridge had established an entitlement to draw on the security ([5]). Fee assessment and the security-payment question were therefore distinct.
On costs, the judgment does not provide a formula for the amount of every gross sum order. It rejects a percentage-based approach on these facts and instead assesses the work reasonably required, with regard to proportionality ([20]-[22]). How that method operates where the work is more complex, the sum at stake is larger, or the evidence is less defective remains dependent on the circumstances.
Nor does the judgment decide the precise evidentiary threshold for establishing entitlement to payment from security in other cases. Its conclusion rests on the evidence before Leeming JA, including the further material and the opportunity given to Bolton to respond ([2], [4]-[5]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bolton v WAM Active Ltd (No 4) [2026] NSWCA 189
Hearing dates: On the papers
Decision date: 10 September 2026
Before: Leeming JA
Decision: 1. Order that the entirety of the monies paid into Court by Mr Bolton pursuant to orders made on 17 April 2025 to secure Mr Bolton’s obligation to pay for the costs of the administration of Keybridge Capital Ltd be released to Keybridge Capital Ltd.
2. Mr Bolton pay the costs of Keybridge Capital Ltd of the motion filed 16 June 2026, excluding the costs of the material supplied in reply.
3. The costs in order 2 above be quantified, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), in the amount of $6,500.
Catchwords: COSTS – payment out of security for costs – whether entitlement to security established – whether special costs order should be made – gross sum costs order – proportionality of costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 21, 60, 98
Cases Cited: Bolton v WAM Active Ltd [2025] NSWCA 81
Bolton v WAM Active Ltd (No 3) [2026] NSWCA 171
Filby v TEG Live Pty Ltd (No 2) [2026] NSWCA 36
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Great Asia Maritime Ltd v Orion Shipping and Trading LLC [2026] UKSC 23; [2026] 1 WLR 3576
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Pasade Holdings v Sydney City Council [2003] NSWSC 913
Category: Costs
Parties: Nicholas Francis John Bolton (appellant/respondent to motion)
WAM Active Ltd (1st respondent)
Geoffrey James Wilson (2nd respondent)
Jesse Michael Hamilton (3rd respondent)
Martyn McCathie (4th respondent)
Frank Antony Catalano (5th respondent)
Sulieman Ahmad Sulieman Ravell (6th respondent)
Keybridge Capital Ltd (7th respondent/applicant on motion)
Gideon Isaac Rathner (8th respondent)
John Dean Patton (9th respondent)
Richard Michael Dukes (10th respondent)
Representation: Counsel:
S Goodman (Solicitor) (Keybridge Capital)
N Bolton (in person)
Solicitors:
Gadens (Keybridge Capital)
File Number(s): 2025/00116543
Publication restriction: Nil
LEEMING JA: These reasons dispose of the remaining issues arising on the notice of motion filed on 16 June 2026 by Keybridge Capital Ltd concerning payment to it of security in the amount of $25,000 provided by the respondent, Mr Nicholas Francis John Bolton, as security for the costs of the administration which was continued during a short stay obtained by him pending appeal: Bolton v WAM Active Ltd [2025] NSWCA 81, orders 2-4.
In the earlier judgment, I indicated that based on the material supplied in support of its application in chief, Keybridge had established an entitlement to be paid in excess of $18,500: Bolton v WAM Active Ltd (No 3) [2026] NSWCA 171, order 1. By evidence supplied in reply, Keybridge sought to rely upon additional costs incurred by the barrister (Mr Gee) and a firm of solicitors (Tisher Liner FC Law). I said that it was “abundantly clear that if regard were had to the material supplied purportedly in reply, then the costs of the administration will exceed $25,000”: at [32]. However, in light of the submission made by Mr Bolton that he suffered “serious prejudice” and that the late supply of evidence “cuts across well tested procedural fairness safeguards in litigation”, I granted leave to Mr Bolton to supply further submissions or evidence in response. That has occurred and by submissions dated 31 August 2026, Mr Bolton makes five further points. I also granted leave for submissions as to the costs of the notice of motion. I deal with each issue in turn.
Mr Bolton’s further submissions in opposition to the payment of the security are as follows:
the invoice for legal fees does not adequately particularise costs;
the “reasonableness and necessity of the legal costs are in issue”, with Mr Bolton noting that the administrator had advised that he would only incur the minimum necessary costs during the period;
Mr Bolton who in effect has assumed the role of a third party payer of legal fees ought to have the ordinary protection of a direct client in having the reasonableness of fees independently assessed;
the costs in question are only a small part of the administrator’s costs during the administration and Keybridge should not receive priority over the security for costs over other parties; and
Mr Bolton is owed salary from the administrator such that to the extent that he has any liability to the administrator “he may be entitled to a right of offset of money”.
I do not accept any of Mr Bolton’s submissions. The issue is not whether Mr Gee or Tisher Liner FC Law are entitled to all or any part of the costs they have billed. The issue is merely whether Keybridge has established an entitlement to be paid the whole or part of the $25,000 paid into Court by way of security, and for the reasons given in my previous judgment, this resolves to whether (a) the additional evidence served by way of reply, in the form of the costs incurred by Mr Gee and Tisher Liner FC Law in the relevant period, establishes that those costs exceed $6,500, and (b) whether there is any real prejudice to Mr Bolton that would prevent Keybridge from relying on that further evidence. As to the latter, he has pointed to none, save for the inability to make the further submissions which have now been made and which I shall address below.
I am comfortably satisfied that Keybridge has established that it is entitled to the entirety of the security which has been paid into Court. It may be accepted that the administrator would be adopting a restrained stance during the extension of the administration pending Mr Bolton’s expedited appeal. Nonetheless, he was a party to proceedings in the Court of Appeal and it was not unreasonable for him to retain solicitors and it was not unreasonable for the solicitors to retain counsel. Prima facie the hourly rates and amounts of time seem reasonable. I accept Mr Bolton’s point that it is not sufficient that Keybridge has paid those costs, but bearing in mind that this judgment does not determine the total indebtedness, but is limited to whether Keybridge has established an entitlement to draw upon the security, nothing further is needed. I am comfortably satisfied that it was reasonably necessary for costs in excess of $6,500 to be incurred during the period.
I do not accept Mr Bolton’s point about priority. The costs incurred by the administrator fall into two categories: those incurred prior to the stay granted by the Court of Appeal pending appeal, and those subsequently. The latter but not the former have the benefit of the security lodged by Mr Bolton as part of the price of obtaining a stay.
The remaining issues relate to costs. Keybridge seeks an order that Mr Bolton pay the entirety of its costs to the motion and further that those costs be quantified by a gross sum costs order. Keybridge submits that it would be disproportionate to the quantum in dispute for the parties to be required to proceed to assessment. Keybridge acknowledges that a gross sum costs order requires a discount and puts forward by way of primary position 70% of its professional fees and as its secondary position, 65% of those fees. Keybridge has supplied with its submission tax invoices by its lawyers, Gadens, to it in the following amounts: $9,600.80 (13 February 2026), $5,933.00 (30 June 2026) and $8,664.70 (31 July 2026) and $8,250 (3 September 2026). The invoices annex listings of the hours billed, the legal practitioners involved and the work undertaken. Some of those invoices incorporate a discount upon the billable hours. In particular, the most recent invoice records professional costs of $13,668 being reduced to $7,500.
Mr Bolton has supplied a submission opposing the costs sought by Keybridge. He points out some of the deficiencies in Keybridge’s application. He also refers to various communications between the parties which, on the view I take, do not relevantly affect the discretion as to costs.
The position then is that the costs incurred by Keybridge to obtain payment to it of $25,000 lodged by way of security have been in excess of $32,000. Keybridge has succeeded in obtaining the full amount of security provided, but in order to do so it has spent around 125% of the amount of security itself. The task was straightforward. It was to establish that Keybridge had incurred costs of $25,000 or more during the period within which the administration was extended. That could have been by establishing the administrator’s costs, including the costs of the solicitor and counsel retained, by a short affidavit prepared by a relatively junior employed solicitor. It could have been preceded by a notice to admit, asserting that the costs of the administrator, solicitors and counsel exceeded $18,000, $4,000 and $3,000 respectively, in which case had issue been joined, Keybridge would be entitled to indemnity costs of proving those amounts.
However, that did not occur. Instead, an affidavit was made by a partner of the firm with carriage of the matter. The affidavit exhibited some 205 pages of documents. It asserted, incorrectly, that those documents established more than $25,000 of costs during the relevant period. The documents contained various errors most of which were pointed out by Mr Bolton, including costs being incurred outside the period. There was also some double counting. It is not implausible that some of the difficulty was contributed to by persons outside the firm – and to be clear I am not for a moment suggesting that the errors were anything other than inadvertent – but what is presently relevant is whether it is reasonable for Mr Bolton to bear the costs incurred by reason of the errors.
**********
Bolton
WAM Active Ltd (No 4)
[2026] NSWCA 171
(2002) 54 NSWLR 738
The $25,000 security was ordered released to Keybridge, and Bolton was ordered to pay $6,500 in Keybridge’s costs of the motion, excluding the costs of material supplied in reply.
Nor do I accept Mr Bolton’s point about set-off. If it were correct, that would defeat the purpose of the security being provided. I observed in my earlier judgment that the offer of security originated with Mr Bolton; it lies ill with him now that the purpose for its provision has eventuated to claim that it was illusory because of a set-off. It is not unlawful for parties to agree that their obligations not be subject to set-off: Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 at 717, which was described as a seminal case on this point in Great Asia Maritime Ltd v Orion Shipping and Trading LLC [2026] UKSC 23; [2026] 1 WLR 3576 at [75] by Lords Hamblen and Burrows writing for the Court. The position is no different with an undertaking to the Court, such as that given by Mr Bolton on 17 April 2025 personally to pay the costs of the administration for a limited period. A necessary component of the efficacy of that undertaking, at least insofar as it was secured by the provision of $25,000 paid into Court, was that it be unqualified by any set-off. It is true that a party is not lightly taken to have renounced an equitable defence, but this can occur by implication if the position is clear, as is explained in R Derham, Derham on the Law of Set-Off (Oxford University Press, 5th ed 2024) at 271-272, while the enactment of s 21(3) of the Civil Procedure Act 2005 (NSW) which authorises the exclusion of statutory set-off by mere agreement cannot improve Mr Bolton’s position on this issue.
For those reasons, I shall make an order entitling Keybridge to be paid the full amount of $25,000 paid into Court by Mr Bolton.
As explained in the earlier judgment, the total established by the affidavit was only $18,500. That caused the need for a further affidavit attaching further material, purportedly in reply but in fact necessary to the application, which in turn generated further delay and another round of submissions from Mr Bolton until finally the entitlement was satisfied. Had I not adopted the course adopted permitting Keybridge to rely on the further material, I would only have directed $18,500 to be paid out, leaving it open to Keybridge to file a second motion supported by better evidence.
Keybridge’s submissions do not attend to additional costs brought about by the deficiencies in the way the application was prepared and in particular the affidavit in chief. It seems to me to be a clear case where Keybridge, although ultimately successful, should not obtain an order for the entirety of its costs.
It is not merely the affidavit purportedly “in reply” brought about by the overstatement of the administrator’s costs within the period. A deal of the costs were incurred many, many months ago – the first bill concerns costs incurred between September and December 2025. The costs of a motion can and often do include work done before the motion is filed, but in the present case it seems (so far as the bills before me suggest) that no work was done whatsoever between January and June 2026, which makes it hard to connect the 2025 work with the motion filed more than half a year later.
Mr Bolton who has unsuccessfully opposed the motion should, prima facie, be ordered to pay some of its costs. However, the reasonable costs of the motion did not include a second affidavit attaching material that should have been provided in chief, nor does it include large amounts of material which were incorrect or irrelevant to establishing the entitlement as to costs, nor should it include work peripherally connected with the administrator’s costs done six months or more before the motion was filed. In the ordinary case, a possible costs order would be to exclude from the costs to which Keybridge is entitled the costs of the affidavit in reply, and the other matters (such as the irrelevance of some of the affidavit and the disconnect between the motion and the work billed in 2025) would be matters for assessment.
However, Keybridge asks for me to make a gross sum costs order, and it is appropriate that I do so. Such an order can be appropriate to avoid “the expense, delay and aggravation likely to be involved in contested costs assessment”: Hamod v State of New South Wales [2011] NSWCA 375 at [817]; Filby v TEG Live Pty Ltd (No 2) [2026] NSWCA 36 at [28]. Everything I have seen concerning the stance taken by Mr Bolton suggests that assessment would be beset with needless disputation.
How did it come about that the costs of a motion to pay out money paid into court were so high? Focussing simply on the application for costs of the motion seeking the payment out of security, the work was done entirely within Gadens. The amounts recorded are 3.2 hours “drafting submissions” and “considering case law regarding general rule as to costs in relation to seeking release of funds paid into court” by a lawyer charging at $460 per hour, 2 hours on “considering authorities on costs for inclusion in submissions” by a graduate charging at $380 per hour, a further 48 minutes by the lawyer drafting submissions, and then 1.4 hours by a senior associate charging at $720 per hour reviewing Mr Bolton’s submissions, settling the costs submissions, “considering position in respect of fixed sum costs order” and “considering authorities on gross sum costs orders and relevance of same”. In that fashion, somewhat more than $4,000 was spent producing a 2 page document with 7 paragraphs seeking a gross sum costs order.
I am conscious that the most recent decision on gross sum costs which found its way into that document is Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, in which Giles JA noted at [30] that Mrs Schipp “should not have to spend a lot more money which she will not recover” in order to obtain the costs payable to her. That justification for a gross sum costs order is equally applicable to an application to claim money paid into Court by way of security for costs. The degree of any disproportion between the issues litigated and the costs claimed and the complexity of proceedings in relation to their costs are factors meriting particular consideration in an application for a gross sum costs order: Hamod at [816]; Filby at [30].
I do not think that it is right, in order to reach a conclusion as to the costs in a gross sum to which Keybridge is entitled, to apply some percentage to the costs billed by the firm. The better approach in a case such as this is that adopted by Bryson J in Pasade Holdings v Sydney City Council [2003] NSWSC 913; 12 BPR 22,441 at [14] in comparable circumstances (where his Honour personally assessed the costs). The starting point is to ask what costs should reasonably have been incurred. They were the costs of the motion, a relatively short affidavit in support, and perhaps short submissions responding to points made by Mr Bolton. The quantity of those costs should reflect s 60 of the Civil Procedure Act 2005 (NSW). It is necessary to bear steadily in mind that this was not an application to obtain a judgment of $25,000. It was not even an application concerning costs of $25,000. Instead it was an application to be paid out of court security which had already been lodged in the amount of $25,000. All that needed to be established was a liability exceeding $25,000 which was the subject of the security which had been ordered and provided.
It would be fair for Mr Bolton to be ordered to pay the costs of filing a motion, plus the cost of preparing an affidavit establishing the costs incurred by the administrator (including the solicitors and counsel) in the relevant period. It is difficult to see the need for a separate submission beyond what would be said in a one page affidavit, save for the need to respond to points raised by Mr Bolton.
The practice and procedure of the Court is required to be implemented in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute: Civil Procedure Act 2005 (NSW), s 60. The costs of a motion seeking payment out of a small sum of security for costs are about as lacking in importance and complexity as could be imagined. I accept that an application involving Mr Bolton will introduce additional issues because of his propensity to take points, but even so, the reasonable costs must be proportionate to what is at stake. It is the work of a few hours. I would allow 4 hours at the rates of a senior associate, plus a little less than an hour of a partner, plus an additional 2 hours of a lawyer’s time dealing with other aspects including correspondence and submissions from Mr Bolton. The hourly rates charged are slightly above the top of the range stated in the Guidelines released by the Costs Assessment Rules Committee, but the latest release (so far as I am aware, it is dated 24 October 2023) was almost three years ago and I am content to proceed on the rates in the firm’s invoices. That would be around $4,500 to which GST should be added, together with the filing fee. I am comfortably satisfied that costs in an amount fixed at $6,500 would be reasonable for the part of the costs of the motion to which Keybridge is entitled. I am not satisfied that any amount of costs appreciably more than that would be reasonable, having regard to what was at stake. I do appreciate that making a very small application such as this is very difficult for a large law firm to do, but that does not stand in the way of the basic point that costs must be proportionate and it must be possible to call upon security without spending anything like the amount at stake.
I shall order that Mr Bolton pay Keybridge’s costs of the motion filed 16 June 2026, excluding the costs of the material supplied in reply, and that those costs be quantified in the amount of $6,500.