//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] ACTSC 75
Supreme Court of the ACT
2026-03-25
Balla AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Bye v Hend (No 3) Citation: [2026] ACTSC 75 Hearing Date: On the papers Decision Date: 25 March 2026 Before: Balla AJ Decision: (1) The plaintiff is to pay the first defendant’s costs from 27 February 2024 on an indemnity basis. (2) The plaintiff is to pay the second defendant's costs from 27 February 2024 on an indemnity basis. Catchwords: CIVIL LAW – PRACTICE AND PROCEDURE – Costs – personal injury – where injury not established and judgment entered in favour of defendants – defendants seeking special costs order – where plaintiff received advice as to poor prospects of success – where defendants made multiple offers of compromise Legislation Cited: Court Procedures Rules 2006 (ACT) rr 1002, 1012 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon (No 2) [2025] ACTSC 217 Parties: Jennifer Bye (Plaintiff) Steven Hend (First Defendant) Homes Gallery Pty Ltd t/as LJ Hooker (Second Defendant) Representation: Counsel R Green (Plaintiff) J T Moffett (First Defendant) I Sjahadi (Second Defendant) Solicitors Rogalski Lawyers (Plaintiff) Mills Oakley (First Defendant) HBA Legal (Second Defendant) File Number: SC 246 of 2023 BALLA AJ: Introduction
On 18 February 2020 Ms Jennifer Bye, the plaintiff, leased a house from Mr Hend, the first defendant. The second defendant, LJ Hooker, had been retained by Mr Hend as the managing agent. Ms Bye claimed that, on 25 June 2020, she sustained an electric shock when she turned on a light switch in the property. She claimed damages from the defendants, who did not admit liability.
The matter was heard by me in October 2025. On 23 December 2025 judgment was entered for the defendants against Ms Bye. I also made an order for the plaintiff to pay each of the defendant’s costs but granted the parties liberty to seek an alternative order in relation to costs by filing and serving written submissions. They did so.
The defendants seek orders for Ms Bye to pay their costs either on an indemnity or solicitor and client basis from one of several alternative dates, including when the proceedings were commenced or when several Offers of Compromise (which are also relied on as Calderbank offers) were served. Alternatively, they ask for an order for costs to follow the event, on the usual basis.
Background
I do not propose to reproduce in full the findings I made when determining the substantive proceedings. However relevantly for the issue of costs, and without derogating from my earlier decision, I mention the following: (a) Ms Bye said that on 21 February 2020 she had taken a condition report she had completed to the office of LJ Hooker, but the property manager was not there. Ms Bye said she left a message, asking the property manager to contact her, so she could tell her that there was nowhere on the condition report where she could describe issues with the power points. I did not accept the evidence of Ms Bye. I found she had met with the property manager on that day, because that was consistent with contemporaneous documents including an email from Ms Bye to the property manager. I further found that this significantly impacted on the reliability of her evidence because Ms Bye repeatedly relied on the property manager’s failure to respond to her message as part of the reason for not having complained about the light switch. (b) I found Ms Bye had sent several lengthy emails to LJ Hooker complaining about issues with the property in which the light switch had not been mentioned. (c) Ms Bye said that the defendants had agreed to meet with her on 7 March 2020 and they had not turned up. I found this evidence was inconsistent with Ms Bye’s contemporaneous emails to LJ Hooker. I also found that no other meeting had been arranged between Ms Bye and the defendants before the date on which Ms Bye said she had sustained the electric shock. I again found that these findings significantly impacted on the reliability of the evidence of Ms Bye because she repeatedly relied on the defendants’ failure to attend at agreed inspections as part of the reason for not complaining about the light switch. (d) Ms Bye said that on 25 June 2020 she put her finger on the light switch and was knocked out for 20 to 30 minutes. She went to bed, did not eat for three days and thought she had not gone to work for a few days. I did not accept this evidence as it was inconsistent with other evidence, including emails sent by Ms Bye in the following days to LJ Hooker in which she spoke about issues with the property but did not mention having sustained an electric shock which had rendered her unconscious. It was also inconsistent with the employer’s records. (e) The first record of Ms Bye attending a medical practitioner was on 2 July 2020. His records did not establish that she had symptoms which must have been caused by an electric shock. Ms Bye attended at hospital on 3 July 2020 and they were unable to identify any burns or an entry or exit site. (f) Ms Bye identified a set of photographs which she said included the defective light switch and had been taken in February 2020. I found it had been taken on 29 June 2020, which was after Ms Bye said she had sustained the electric shock, and that this finding impacted on the reliability of the evidence of Ms Bye.
I: (a) Declined to find that, at any time up to and including 27 June 2020, Ms Bye made any complaint to LJ Hooker or Mr Hend about a defective light switch in the house. (b) Found that Ms Bye had failed to establish that she had sustained an electric shock on 25 June 2020.
General principles
The discretion to make a costs order is very wide, but it must be exercised judicially: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [35], [65].
The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9].
Fairness is the touchstone. The result should be fair having regard to the particular facts and circumstances of the proceeding. “Ultimately, the Court is required to determine the appropriate order in the interests of justice”: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [12]. In other words, the court makes a “broad evaluative judgment of what justice requires”: Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601 at [2].
Indemnity costs
The defendants’ primary submission was that they should be the beneficiaries of special costs orders for: (a) Indemnity or solicitor and client costs from 22 June 2023, being the date of the commencement of the proceedings; (b) Alternatively, indemnity or solicitor and client costs from 6 October 2023 or 1 November 2023, being the date Ms Bye provided answers to requests for further and better particulars from the second defendant and first defendant respectively; (c) Alternatively, indemnity or solicitor and client costs from 19 January 2024, being the date counsel provided written advice to Ms Bye; or (d) Alternatively, indemnity or solicitor and client costs from 27 February 2024, being the date Ms Bye received written advice from her solicitors.
In Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon (No 2) [2025] ACTSC 217 the court held: 28. The Court may make an order that costs against a party be assessed on a solicitor and client basis, a “special costs order” (r 1752). Whether such an order is made is a matter in the exercise of discretion. The fundamental purpose of such an order is to compensate the successful party where it is reasonable and just that the party who has caused the other party to incur costs be called on to reimburse the other. 29. The circumstances in which a special costs order may be made have often been discussed. Here there is perhaps no better place to start than with Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 where Sheppard J considered the authorities and at 231 said: French J dealt with the matter again in J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) (1993) 46 IR 301). He referred (at 303) to Fountain and his earlier decision in Tetijo (supra). In relation to Fountain he said (at 303): "Although there is said to be a presumption in such cases that the action was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case. ...” 30. His Honour continued and suggested circumstances in which such an order might be made including, relevantly here, where proceedings were commenced with wilful disregard of known facts (at 233). So too in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 Woodward J, in the course of awarding indemnity costs, referred to an application being “commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.”
This is not a case where one party’s oral evidence was preferred to the oral evidence of another party. There was copious documentary evidence contradicting the pleadings and the major factual assertions made by Ms Bye when giving evidence, many of those documents having been created by Ms Bye herself.
Further, on 19 January 2024, Ms Bye’s then solicitors received written advice from counsel which is in evidence before me. It was attached to an affidavit prepared by Ms Bye which was read in an interlocutory application. There was no submission made by counsel for Ms Bye that the advice was not admissible before me because Ms Bye had inadvertently or mistakenly discovered that advice which would otherwise have been privileged.
Counsel advised Ms Bye: (a) There was no contemporaneous record of any problem with this switch or any other switch within the premises. (b) There was nothing to suggest that the landlord or agent should have known about the problem. (c) Despite the fact that Ms Bye complained regularly to the managing agent, there was no record of a complaint about the light switch. (d) In a complaint to the agent after the incident, Ms Bye did not mention what she had told her instructing solicitors about her injury. (e) It was not clear to counsel that the switch was in fact faulty or how it came to be that Ms Bye touched exposed wires.
On 27 February 2024, Ms Bye’s then solicitors sent her that advice. In the covering letter the solicitors confirmed that a meeting had taken place in which she had been advised that her claim had “no reasonable prospects of success”.
I am satisfied that, by 27 February 2024, not only should Ms Bye have known, but she in fact had been advised by counsel, that her case had no reasonable prospect of success against either defendant. She nevertheless pursued her claim with an apparent wilful disregard to the objective facts, her own documentary case and in circumstances where she should have known following the advice she had received that her case was hopeless.
For these reasons, I order the plaintiff to pay the defendants’ costs from 27 February 2024 on an indemnity basis.
Offers of Compromise/Calderbank Offers
In view of my previous finding, there is no need for me to determine the defendants’ applications which related to the service of Offers of Compromise, two of which were also relied on as Calderbank offers (Calderbank v Calderbank [1975] 3 All ER 333).
Rule 1002 of the Court Procedures Rules 2006 (ACT) permits a defendant to serve an Offer of Compromise proposing a judgment in favour of the defendant. Rule 1012 then sets out the costs consequences (unless the court otherwise orders) for a failure to accept the offer where the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer.
The following Offers of Compromise were served: (a) On 5 March 2024 the defendants offered to settle the proceedings on the basis of a judgment in favour of each defendant. (b) On 9 July 2024 LJ Hooker offered to settle the proceedings against it on the basis of a judgment in its favour. (c) On 3 September 2025 LJ Hooker offered to settle the proceedings against it on the basis of a judgment in its favour. (d) On 9 September 2025 Mr Hend offered to settle the proceedings against him on the basis of a judgment in his favour.
Counsel for the plaintiff: (a) Did not dispute that each of the Offers of Compromise had been served. (b) Did not contend that there was any error or inadequacy as to the form of any of the Offers of Compromise. (c) Did not submit that the defendants had not made a genuine offer to compromise each of their claims. (d) Did not put any matter to me which should cause me to “otherwise order”. (e) Did not dispute the submission made by the defendants that the judgments were no more favourable to the plaintiff than the offers.
If it had been necessary for me to do so, I would have found that, as a consequence of the first Offer of Compromise, the defendants would have been entitled to their costs on a solicitor and client basis from 6 March 2024, being the day after the first offer was made and on the usual basis up until that date.
Further, I would have accepted that the first Offer of Compromise was expressly also made as a Calderbank offer and, for the reasons I have already given, I would have been satisfied that the plaintiff was unreasonable in rejecting the offer.
Other matters
Counsel for the plaintiff submitted that, although Ms Bye has returned to work and not sat on her hands awaiting the outcome of this case, her ability to work has been restricted by numerous issues, the most critical being the shock arising out of the incident together with the various injuries and disabilities discussed in medical reports.
Accordingly, it was submitted, Ms Bye’s capacity to pay any debt in relation to costs has been impaired. Her financial circumstances should be taken into account.
In circumstances where I have not accepted that Ms Bye established that she did sustain an electric shock, the defendants did not admit that she had sustained any injury or disability from an electric shock on that day and there is no other evidence as to Ms Bye’s financial circumstances, I do not accept this submission.
In any event, the submission did not explain the legal basis on which Ms Bye’s financial circumstances should be taken into account nor was there any explanation as to the orders she sought.
Orders
I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Balla. Associate: Date:
Bye
Hend (No 3)
[1998] HCA 11
(1993) 46 FCR 225
(1993) 46 IR 301
(1988) 81 ALR 397