Brady v NULIS Nominees

costs of the proceeding

1. In Brady (No 4) I expressed the view that Mr Brady, should pay the respondent's, NULIS Nominees (Australia) Limited in its capacity as trustee of the MLC Super Fund, costs of the proceeding: at [1008]. This followed from my conclusion that Mr Brady had failed to make out any of his claims against NULIS.
2. NULIS seeks its costs of, and incidental to, the proceeding on a party and party basis up to 11 August 2023 and thereafter on an indemnity basis. It also seeks an order that those costs be determined on a lump sum basis together with a direction that a Registrar determine the amount of those costs in accordance with the Court's orders.
3. There was no dispute about the general principles relating to orders for costs including that: s 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretion on the Court to award costs in a proceeding, including by way of an order that costs be paid on an indemnity basis. The discretion to award costs on a basis other than as between party and party is unfettered save that it must be exercised "judicially and not arbitrarily or capriciously": Edwards v Nine Network Australia Pty Limited (No 6) [2024] FCA 758; an established principle guiding the exercise of the discretion is that, in the absence of special circumstances, the successful party is awarded costs; and r 40.02(b) of the Federal Court Rules 2011 (Cth) permits the assessment of costs on a lump sum basis. Such an order may be particularly appropriate in large and complex cases as it saves the "time, trouble, expense and aggravation of a taxation": see Paciocco v Australia and New Zealand Banking Group Ltd (No 2) (2017) 253 FCR 403 at [20].
4. Given the matters set out above, there was no dispute that Mr Brady should pay NULIS' costs of the proceeding on a party and party basis, that those costs should be paid on a lump sum basis and that the quantum of NULIS' costs should be determined by a Registrar. However, Mr Brady opposes NULIS' application for the payment of its costs on an indemnity basis after 11 August 2023.

NULIS' settlement offer

1. NULIS bases its application for indemnity costs on a letter dated 3 August 2023 from its solicitors, King and Wood Mallesons (KWM), to Mr Brady's solicitors, William Roberts (August 2023 Letter). In the August 2023 Letter NULIS made an offer of "payment of $25 million in full and final settlement of all claims made and costs incurred in the Proceeding, subject to execution of a Deed of Settlement on terms satisfactory to [NULIS] and approval of the settlement by the Court in accordance with section 33V of the Federal Court of Australia Act 1976 (Cth)" (Offer). The August 2023 Letter also set out NULIS' view of the case at that time and its perceived weaknesses.
2. The Offer was expressed to be open for 14 days up to 5.00 pm on 17 August 2023. It was made on a without prejudice basis save as to costs "in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 and subsequent Australian decisions applying those principles". The August 2023 Letter stated that "[i]f the Offer is not accepted, and judgment is ultimately obtained (whether at the Initial Trial or in any subsequent claim determination process) in favour of [NULIS] on terms more favourable than [the Offer], [the August 2023 Letter] will be tendered in due course in support of an application that [Mr Brady] pay [NULIS'] costs, including costs from the date of [the August 2023 Letter] on an indemnity basis".
3. By letter dated 11 August 2023 from William Roberts to KWM, the Offer was rejected.
4. The Offer complied with the requirements in Calderbank v Calderbank [1975] 3 All ER 333. Generally, where a Calderbank offer is rejected by the unsuccessful party and the offer proves to be more generous than the subsequent judgment the Court may award costs on an indemnity basis where the offer was unreasonably rejected. However, Mr Brady submits that:
5. there is no basis for NULIS to claim indemnity costs and the Court should find that the rejection by a representative applicant of a respondent's Calderbank offer cannot justify an award of indemnity costs. In other words, Mr Brady submits that representative proceedings are in a different category to other inter partes proceedings vis a vis the operation of Calderbank offers; and
6. even if indemnity costs can be awarded against representative applicants by reason of an unreasonable rejection of a Calderbank offer, his rejection of the Offer was neither unreasonable nor imprudent.
7. It is convenient first to consider the latter question. If I conclude in favour of Mr Brady that his rejection of the Offer was not unreasonable, the former question does not arise.

Was Mr Brady's rejection of the Offer unreasonable?

1. As set out above, an order for indemnity costs may be appropriate where an unsuccessful party unreasonably or imprudently refused or failed to accept an offer by the successful party to the proceeding: see Edwards at [9] and the cases there cited. The question to be resolved is whether the offeree's refusal of the offer was "unreasonable" when viewed in light of the circumstances existing at the time the offer was rejected.
2. The assessment of the "unreasonableness" of an offeree's refusal of a settlement offer is a broad-ranging inquiry not restricted to consideration of the extent or quantum of the compromise offered: see Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 at [6] and [8]. Although they cannot be stated exhaustively, the circumstances that may be taken into account in determining whether rejection of an offer was unreasonable include:
3. the stage of the proceeding at which the offer was received;
4. the time allowed to the offeree to consider the offer;
5. the extent of the compromise offered;
6. the offeree's prospects of success, assessed as at the date of the offer;
7. the clarity with which the terms of the offer were expressed; and
8. whether the offer foreshadowed an application for an indemnity costs order in the event of the offeree rejecting it, see Anchorage at [7].
9. I accept, as NULIS submits, that the August 2023 Letter, which gave Mr Brady 14 days to consider the Offer, allowed Mr Brady ample time to consider it and that it foreshadowed an application for indemnity costs in the event that the Offer was rejected.
10. I also accept that the terms of the Offer were stated clearly in the August 2023 Letter. That is so, despite Mr Brady's related submission that the Offer's "non-final" nature provides a rational basis for concluding that its rejection was not unreasonable.
11. Mr Brady relies on two authorities in support of his submission.
12. The first is Petrie v Dickson (No 2) [2024] NSWSC 1337. That case concerned an offer of compromise made under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). At [25] of Petrie Parker J observed that avoiding further costs is usually a major incentive in accepting an offer of compromise but expressed the view that there is a risk of unfairness if costs sanctions are used to pressure a party to accept an offer and acceptance of the offer may not necessarily end the litigation, thus leaving that party exposed to further delay and further unrecoverable costs. His Honour continued at [26]-[29]: 26 One way to avoid such a risk of unfairness would be to treat the term "offer" in the Rules as implicitly having its contractual meaning, so that such an offer is only valid if, upon acceptance, it gives rise to an immediate and binding settlement. This was the view expressed by Gillard J, in the context of the comparable Victorian costs regime, in MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163, at [56]. I made the same assumption in Shazbot (No 6) at [117]. On the other hand, Wilson J in Dibbs v Emirates (No 2) [2015] NSWSC 1786 was not prepared, in a case where the precise wording of the order to be made in consequence of acceptance could readily have been worked out between the parties, to say that imprecision invalidated the offer: see at [18]. 27 In passing, I note that in Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3) [2019] NSWCA 208, Leeming JA (sitting as a single judge) made an indemnity costs order on the basis of a Calderbank offer which provided for the proposed settlement to be recorded in a formal deed. And in Harris v Harris [2013] NSWSC 1157, Kunc J awarded indemnity costs where a Calderbank offer provided for the proposed settlement to be approved by the Court. But the questions of construction which arise for formal offers under the Rules did not arise in these cases. The ultimate question for a Calderbank offer is whether refusal was unreasonable, and the non-final nature of an "offer" may always be taken into account for that purpose. 28 In Ritchie v Advanced Plumbing and Drains Pty Ltd (No 2) [2022] NSWSC 849, Davies J had to deal with an application for indemnity costs under r 42.15A (the equivalent provision in the Rules for when an offer is made by a defendant and not plaintiff) in unsuccessful class action litigation. His Honour stated, at [65]: … the offer was unconditional, but acceptance of it required court approval: s 173 Civil Procedure Act. In the first place, it was not possible for the offer to be accepted because of the requirement for approval. At best, the plaintiff could have conditionally accepted the offer subject to the approval of the court, but the offer did not accept a conditional acceptance. 29 His Honour did not consider whether the offer was valid under the Rules, but considered that its non-final nature was a "rational basis" for ordering otherwise under the Rules. In my view, the same reasoning applies in the present case.
13. As set out above, Petrie concerned an offer of compromise under the UCPR which by their terms prescribe a process for the making of offers of compromise and the costs consequences in the event that, for example, an applicant rejects an offer and the respondent offeror achieves a better outcome at trial than that which was proffered by it in that offer. It is the construction of the relevant rule that led Parker J to conclude as his Honour did. As Parker J acknowledges, that question does not arise for a Calderbank offer although the lack of finality in an offer may be relevant to whether the rejection of such an offer is unreasonable.
14. The second is Amorosi v Robinson (No 2) [2024] VSC 806 where Moore J said at [48]: An offer of compromise made under the Rules must be certain in its terms. It must be capable of acceptance and enforcement and be 'unambiguously clear'. As Gillard J stated in in M T Associates Pty Ltd v Aqua-Max Pty Ltd & Anor (No 3), this means that the offer: ... cannot be ambiguous or uncertain in its terms or involve further negotiation between the parties prior to the compromise being effected. The offer must be capable of being accepted thereby bringing into existence a binding contract. Consistent with the common policy objectives which underpin offers of compromise and Calderbank offers, these principles apply equally to Calderbank offers. (Footnotes omitted.)
15. In concluding that the principles that apply to offers of compromise under court rules apply equally to Calderbank offers, Moore J referred at footnote 38, by way of example, to Kemp v Ryan [2012] ACTCA 12 at [12], [13] and [35]. In that case a Full Court of the ACT Supreme Court (Penfold, Burns and Marshall JJ) considered an appeal from a refusal by a Master to exercise his discretion to award indemnity costs. Relevantly, the Master had formed the view that the intended Calderbank offer was not unambiguously clear and certain and therefore could not constitute a proper Calderbank offer. At [12]-[13] the Full Court said:
16. The Master then discussed the requirements to be satisfied for an offer to constitute a valid Calderbank offer. His Honour observed at [16] that: the terms of the settlement offered must be unambiguously clear [and the offer] must be capable of being accepted and thereby concluding the proceedings by creating a binding contract.
17. There is no dispute that the Master thereby made a correct statement of law by reference to authorities such as John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq) [1995] 2 Qd R 591 at 595, Grbavac v Hart [1996] VSC 37; [1997] 1 VR 154 at 160 and M T Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163 at [56]. See also Perry v Comcare [2006] FCA 33; [2006] 150 FCR 319 (Perry) at 55-57, cited in Facton Ltd (formerly G-Star Raw Denim KFT) v Seo [2011] FCA 344 and G M Holden Ltd v Paine (No 3) [2011] FCA 693 as authority for the principle that the "central requirements" of a Calderbank offer are that it is "clear, precise and certain".
18. That is, at the very least the terms of a Calderbank offer must be clear and unambiguous or as the Full Court of the ACT Supreme Court in Ryan said, based on the authorities referred to therein, "clear, precise and certain". They must be capable of acceptance.
19. There was debate between the parties, which I do not need to resolve on this application, as to whether contractual principles apply to Calderbank offers. That is whether, like offers of compromise under court rules, the offer upon acceptance must give rise to an immediately binding contract. That does not seem to be the position taken in the authorities cited at [27] of Petrie where Calderbank offers were found to be valid despite the need in one case for the parties to enter into a deed of release and in the other for the proposed settlement to be approved by the Court.
20. Here Mr Brady contends that the fact that the Offer was "non-final" provides a basis for concluding that its rejection was not unreasonable. He says that is so for two reasons; first, the Offer was subject to entry into a deed of settlement on terms satisfactory to NULIS, the terms of which were not set out in the August 2023 Letter; and secondly, the Offer was subject to Court approval.
21. As to the former, it is instructive to observe that Mr Brady simply rejected the Offer without making any inquiry about the terms of any proposed deed of settlement. That seems to suggest that he was not concerned by that aspect of the settlement. In any event, I do not think that the requirement for entry into a deed of release makes an offer ambiguous or imprecise in its terms or, as Mr Brady puts, it "non-final". It is common practice for parties to agree on the terms of a settlement subject to entry into of a deed of settlement. I see no reason why this practice should be precluded by a Calderbank offer. To reach that conclusion would not be in keeping with s 37M of the Federal Court Act nor would it assist to promote the settlement of disputes. Of course, if those terms could not be agreed or the offeror party was unreasonable in its demands, they would be matters to take into account in considering whether rejection of the offer was unreasonable.
22. As to the latter, if that was the case, a Calderbank offer could never be made in the context of a representative proceeding by a respondent or, indeed, an applicant, or it seems in any other proceeding which required court approval in the event of settlement. Once again, the practical consequence of such a conclusion would be incongruous and not in keeping with the overarching purpose in s 37M of the Federal Court Act. Once again, a court's refusal to approve a settlement would be a matter to be taken into account in considering whether rejection of an offer is unreasonable.
23. The Offer was made after pleadings had closed, discovery had been given, all evidence was filed, approximately two months prior to trial and at a time when the parties were each aware of the case they had to meet to establish or defend the claims. That said, the proceeding raised complex and novel issues which, at the time of the Offer, had not been the subject of judicial consideration. As Mr Brady submits, there was no prior reported judgment that considered the specific claims made in this proceeding including whether the payment of commissions by the trustee of a superannuation fund was in breach of the covenants in the Superannuation Industry (Supervision) Act 1993 (Cth) or the 2012 reforms to the Corporations Act 2001 (Cth) (referred to as the Future of Financial Advice or FoFA reforms). To that end, Mr Brady's claim involved an uncertain application of the law.
24. Seen in that light, I accept Mr Brady's submission that the August 2023 Letter did not objectively demonstrate that his case must fail or that it was likely to fail. Even if, given the timing of the Offer, Mr Brady was apprised of the potential strengths and weaknesses of his case, the complexity and novelty of the issues would have been factors relevant to any assessment of Mr Brady's prospects of success at the time the Offer was made. In short, those features would make any assessment of prospects difficult and militate against any assessment that at the time of the Offer it was likely Mr Brady's claim might or would fail.
25. The Offer provided for payment of $25 million which the evidence now before me shows, at that stage, was sufficient to cover Mr Brady's costs of the proceeding and enabled a payment to Mr Brady and group members. At the time of the Offer Mr Brady's total legal costs were $7,098,653.58. Allowing for a payment of 25% commission to the funder and additional legal fees associated with settlement approval and administration, if the settlement was approved, approximately $11.7 million would be available for group members. This is in contrast to other cases where there was little time given to an applicant to consider and accept an offer and/or there was minimal return to group members after payment for costs: see Haslam v Money for Living (Aust) Pty Ltd (No 2) [2009] FCA 468; Belconnen Lakeview Pty Ltd v Lloyd (No 2) [2021] FCAFC 218 and McFarlane as Trustee for the S McFarlane Superannuation Fund v Insignia Financial Ltd (No 2) [2024] FCA 356.
26. However, given the claims made, their novelty and complexity, the effect of those factors on the assessment of prospects at the time of the Offer and that Mr Brady assessed total group members' claims at approximately $181 million plus interest, I accept that the Offer represented a significant discount on those claims when assessed at the time of the Offer. The extent of that discount in the present case, even when one considers the inherent risks in litigation, is relevant in assessing the reasonableness of Mr Brady's rejection of the Offer.
27. Given the stage of the proceeding when the Offer was made, the assessment of prospects at that time, including that the issues that arose for resolution were novel and had not before been considered by a court, and that the Offer, even accounting for the inherent risks in litigation, represented a material discount to the total possible quantum to which Mr Brady and group members may have been entitled had they been successful in any of the claims as pleaded, I am on balance not satisfied that it was unreasonable for Mr Brady to reject the Offer at the time. It follows that NULIS is not entitled to its costs on an indemnity basis after 11 August 2023.
28. Given this finding it is not necessary for me to consider the question of principle identified at [10(1)] above, namely whether the Court should find that the rejection by a representative applicant of a respondent's Calderbank offer cannot justify an award of indemnity costs.
29. However, had I been required to consider this question I would not have taken up Mr Brady's offer to prefer the position advanced in McMullin v ICI Australia Operations Pty Ltd (No 6) [1997] FCA 1426 over the conclusion reached by Stewart J in Karpik v Carnival plc (The Ruby Princess) (Common Questions and Costs) [2024] FCA 57. In other words, I am not satisfied that I would have found that Stewart J's finding that McMullin is "clearly wrong" is, in turn, clearly wrong. Rather, I would lend my agreement to the observations of Stewart J at [18]-[20] of Karpik and add to them that it would be contrary to s 37M of the Federal Court Act to conclude as a general proposition, that the rejection by a representative applicant of a respondent's Calderbank offer cannot justify an award of indemnity costs.

the stay

1. Mr Brady seeks an interim stay of any costs order until seven days after expiration of the period in which he can file a notice of appeal, being 28 days from the date of making final orders: r 36.03(b) of the Rules. Final orders dismissing the proceeding were made on 12 February 2025.
2. Mr Brady submits that the Court has the power to make the order he seeks as an incident of its general power to control its own proceedings and pursuant to s 23 of the Federal Court Act and r 36.08(2) of the Rules. He submits that the proposed short stay is appropriate to permit him to seek a stay immediately after the filing of his notice of appeal without the parties incurring costs that may be wasted in the interim period. At that latter stage the Court will have the benefit of the grounds of appeal in determining the stay application. NULIS opposes the application for an interim stay.
3. Mr Brady relies on Australian Securities and Investment Commission v Aviation 3030 Pty Ltd (No 2) [2019] FCA 391 at [1]-[7]. There the defendants sought a seven day stay of winding up orders so er the Court's reasons and obtain advice about, and decide whether they would pursue, an appeal. The Court acceded to the defendants' application, which was unopposed. In doing so O'Callaghan J said at [7]: The principles governing the exercise of the Court's discretion to order a stay of winding up orders were summarised by Reeves J in Deputy Commissioner of Taxation v Ansett Resources & Industries Pty Ltd (2010) 79 ACSR 347 at [11]-[12]: ... [I]t is clear, in my view, that I have the power under s 23 of the Federal Court Act 1976 (Cth) to order a stay of the winding-up order pending an appeal to the Full Court. The grant of such a stay is a matter for the discretion of the court in all the circumstances of the case: see HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at [47]-[48] (HVAC) per French J. Furthermore, the principles applicable to this stay application are the same as those that apply under the Rules of Court to the stay of any order of the court pending an appeal: see Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737 at [18] (Kalifair); Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd (2004) 209 ALR 86 at [17] (Masri); and Gronow, McPherson's Law of Company Liquidation (Lawbook Co, subscription service) at [16.190]. Under the Federal Court Rules, the normal principles are these. First, it is not necessary to demonstrate some "special" or "exceptional" reason for the stay: see Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66 and HVAC at [48]. Secondly, there is an onus on the applicant to make out a reason or appropriate case for the discretion to be exercised in its favour: see HVAC at [48] and Ng v Van Der Velde [2010] FCA 89 at [20] and [21] (Ng). Thirdly, the fact that an appeal will be rendered nugatory if a stay is not granted, is usually regarded as a substantial factor in favour of a stay. This, in turn, requires some assessment to be made to the prospects of success on the appeal: see, variously, Alexander v Cambridge Credit Corp Ltd (receivers appointed) (1985) 2 NSWLR 685 at 695; Kalifair at [18]; Masriat [17]; HVAC at [49(b)] and Ng at [21]. That assessment has been described as: "a preliminary non­speculative assessment of whether the appellant by the grounds of appeal has raised an arguable case ... [involving] ... a low threshold of arguability": see Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867 at [40] per Greenwood J and Ng at [36]. Fourthly, if the grounds of appeal disclose an arguable case, it is necessary to consider where the balance of convenience lies. See Kalifair at [18] and Masri at [17] …
4. In Quach v MLC Limited [2022] FCAFC 202 a Full Court of this Court set out the following principles in relation to the grant of a stay, in that case of a costs order, pending an appeal at [81]: In National Retail Association v Fair Work Commission (No 2) [2014] FCA 664 the Court made the following observations in respect of stay applications:
5. Relevant principles to which the Court ought have regard in the present circumstances include the following:

• An order granting a stay is an interlocutory order at the discretion of the primary judge, although the discretion must be exercised judicially: …
• Further, the discretion of the Court in granting a stay ought not be exercised lightly, and only in circumstances where there would be so adverse and serious a consequence that interlocutory intervention should take place notwithstanding that there has not been an opportunity for full consideration of the appeal: …
• To that extent the balance of convenience plays an important role in determining whether an order ought be made: …
• The Court may be minded to refuse a stay where it is satisfied that there are no serious questions for the determination in the appeal or review: …. Conversely, the Court may be minded to grant a stay where, on a preliminary assessment of the case, the Court is satisfied that grounds of appeal or review have merit: …
• The Court may be minded to grant a stay where it is satisfied that any subsequent appeal or review would be rendered nugatory should a stay be refused: …
• Decisions at first instance should not be treated as merely provisional. A successful party in litigation is entitled to the fruits of its judgment, and courts should not be disposed to delay the enforcement of orders. A sufficient basis must be shown to outweigh these considerations: …
• The Court will consider whether a stay is warranted in the interests of justice: … (Citations omitted.)

1. For the following reasons I am not satisfied that the stay sought by Mr Brady should be granted.
2. First, there will be no adverse or serious consequence for Mr Brady if the short stay sought is not granted. Mr Brady will not be denied the opportunity to appeal nor, as might have been the case in Aviation, will his appeal be rendered nugatory.
3. Secondly, no submissions were made by Mr Brady as to where the balance of convenience might lie but it is difficult to see how it lies in his favour. As I have already said, a refusal of the short stay will not render any appeal by Mr Brady nugatory. Further, as a practical matter, the process for assessment of NULIS' costs will not have progressed in any significant way, if at all, in the 35 day period contemplated for the stay: no costs orders were made at the time of the final orders given the need for me to consider NULIS' application for indemnity costs; the parties have awaited the outcome of that application; and thereafter the proceeding needs to be referred to a Registrar for commencement of the lump sum costs assessment process. On the other hand, NULIS was successful at trial and is entitled to its costs. For it, recoupment of some or all of its costs is, in effect, the fruits of the judgment to which it is entitled.

conclusion

1. I will make orders that Mr Brady is pay NULIS' costs of the proceeding on a party and party basis and, pursuant to r 40.02 of the Rules, that those costs are to be assessed on a lump sum basis with the assessment to be undertaken by a Registrar of the Court.
2. NULIS has failed in its application for indemnity costs based on the Offer and Mr Brady has failed in his application for a stay. These two applications were ventilated before me (both in written and oral submission) at the same time as the parties addressed on extant issues arising in relation to the common questions. I will make an order that each party is to pay its own costs of the indemnity costs and stay applications.
3. That leaves only the question of the costs of the resolution of the answers to the common questions, to the extent the parties differed on the proposed answers. I am satisfied that those should form part of the costs in the proceeding and be treated as costs in the cause. That means that Mr Brady is to pay NULIS' costs of and incidental to the resolution of the answers to the common questions. For clarity, I will make an order accordingly.
4. If any party wishes to apply to vary either of the cost orders to be made in relation to the indemnity costs and stay applications or the resolution of the answers to the common questions, that party should so inform my Associate within seven days of the publication of these reasons and in doing so should set out the basis for seeking the variation. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.