The principles so identified by Sheppard J have been applied by other judges of this Court from time to time, for example in John S Hayes (above). Colgate-Palmolive (above) did not involve specifically consideration of the terms of O 23, which in its current form was introduced into the Rules only subsequent to that decision. There is nothing in O 23 r 11(4) which suggests that it should not apply in its terms simply because the offeror in question is a liquidator, or otherwise has recourse to a fund to recover costs. Whilst it is true that, in the present circumstances, the applicant will have recourse to the company's funds in respect of his full proper costs in any event, I do not think that that consideration of itself, or indeed with the other matters raised by the Commissioner, provides a reason or a sufficient reason to not give effect to the presumptive intent of O 23 r 11. The proceedings are brought by the liquidator for the benefit of the creditors and members of the company. To the extent to which the funds of the company are used in the conduct of successful litigation, and are not otherwise recoverable, there is proportionately a lesser fund available to satisfy the demands of the creditors and of the members. If an order for indemnity costs were made, in accordance with the rule, to the extent to which those costs exceed the party and party costs of the applicant, an equal amount will then be available to be distributed pro rata amongst all unsecured creditors of the company including the Commissioner, and in the event of surplus, to the members. In any event, I do not take Sheppard J to say that in any case in which a liquidator brings proceedings on behalf of a company, necessarily different considerations will apply. His Honour's proposition noted firstly that the problem arises in adversary litigation, ie. litigation as between parties at arm's length. This is such litigation. There may be many circumstances in which the different considerations to which Sheppard J referred may apply. I do not think the mere fact that the applicant on the claim is a liquidator, on behalf of the company in liquidation, and is bringing a proceeding at arm's length against another person which in this particular circumstance happens to be the Commissioner, provides a sound reason not to apply the apparent intent of the rule. It might very well have been some other creditor or creditors of the company, rather than the Commissioner, against whom the claim or a like claim was pursued.
Next it was put that the proceeding was complex. There may be cases in which the nature of the issues, or the circumstances giving rise to the issue being litigated as and when it was litigated, do merit special consideration. I do not see in the nature of this claim that there are any such special considerations. No particular feature of the nature of the issues, or their relevance as a matter of general principle, or in any other way was identified by the Commissioner.
It was next contended that the Commissioner had not acted irresponsibly in the conduct of the defence of the claim, and that any costs on an indemnity basis under the rule ought only to be ordered if his conduct is properly so characterised. In that way, it was contended, the rule would only apply where it was appropriate to penalise the conduct of one party to the litigation. I accept, for present purposes, that the Commissioner did not act irresponsibly in the conduct of the proceeding. In my view, however, the contention put is simply not supported by the words of the rule. The proposition put is more appropriately applicable to a claim for costs on an indemnity basis absent the applicant having followed the procedure prescribed by O 23. As Lindgren J in MGICA (above) pointed out, such matters may well then be of significance. In my view the rule, on its proper construction, does not provide that its presumptive effect should be imposed only where the offeree is shown to have acted unreasonably.
Finally, it was contended that the Commissioner was in a difficult position by reason of his cross-claim against the directors of the company. There may be circumstances in which, by reason of a cross-claim, or by reason of the interrelationship of the issues in the principal claim and in the cross-claim, other reasons will be established which make the operation of rule as contemplated by O 23 r 11(4) not appropriate. However, the mere fact of the cross-claim is not, in my view, a sufficient reason to alter that starting point. There is no explanation offered by the Commissioner as to why the offer was accepted. There is no evidence that the Commissioner, upon receipt of the offer, raised either formally or informally the implications of the offer in relation to the cross-claim. Indeed, on the material before me, on the eve of trial the Commissioner's attitude was that the offer made was rejected because he was confident of success in his defence. There is no evidence, nor any suggestion put in submission, that the cross respondents were approached by the Commissioner in any attempt to liaise or correspond with them or to discuss with them the implications of the offer. The material before me simply indicates that the Commissioner rejected the offer.
There are some additional considerations which, in my view, are worthy of note. The offer itself did represent a real element of compromise by the applicant. It was not a formulated offer equal to the amount of the claim, simply with a view to getting an order for indemnity costs when and if the claim succeeded in its entirety. The applicant's offer did indicate a willingness to accept a lower amount than both the claim as formulated and the ultimate judgment. It was not an offer which amounted to no more than a request for surrender. No other conduct of the applicant was identified as bearing adversely on his entitlement otherwise to the operation of the Rule.
There may be circumstances which may satisfactorily explain the failure of a respondent to accept an applicant's offer, or which provide other reasons why the Court should "otherwise order", so as not to impose costs on an indemnity basis as the starting point for the operation of O 23 r 11(4) provides. In the present case I do not find the circumstances identified, either separately or taken together, of sufficient moment to warrant reversing that prescription. It would discourage proper use of O 23 to do so.
Accordingly, in my judgment it is appropriate that the applicant should have the costs of the action on and after 5 June 1996 on an indemnity basis, so that such costs are to include all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred.
INDEMNITY COSTS ON ISSUES
In the light of the above ruling, as the proceedings were instituted on 19 January 1996, the effect of this part of the application in practical terms is for indemnity costs of the three identified issues with respect to the proceedings up to and including 4 June 1996.
The Commissioner filed a defence on 21 February 1996, although it was later amended, and a cross-claim on the same day. The applicant filed affidavits in support of his claim on 20 and 21 June 1996 (to which were exhibited reports of himself dated 11 April 1996 and of Mr Anthony Sims, another accountant, dated 18 March 1996 dealing with the issues of insolvency and the preferential effect of the two payments), and further affidavits on 12 and 13 August 1996.
There is no evidence of correspondence with respect to the three identified issues prior to 4 June 1996, although communications inviting the Commissioner to acknowledge or admit insolvency and preferential effect of the two payments were subsequently given from 7 November 1996. It is not necessary to consider those communications in detail, although they may have had significance had I not otherwise ordered costs on an indemnity basis from 5 June 1996.
The applicant contends that the issues identified were raised or put in issue by the Commissioner on the pleadings, that the production of experts' reports of himself and Mr Anthony Sims were provided pursuant to Court orders, and that at no time did the Commissioner adduce any inconsistent evidence either of an expert or other nature concerning insolvency or the preferential effect of the two payments. The later communications from 7 November 1996 did serve to invite the Commissioner's attention to acknowledging those issues and sought particulars of the grounds of any dispute with respect to them, as well as giving notice of an intention to seek indemnity costs with respect to them. Far from having the desired effect, the Commissioner in fact immediately prior to the hearing maintained his dispute with respect to those issues, and required both the liquidator and Mr Sims to be presented for cross-examination. It was only at the hearing, and after the trial had commenced, that it became apparent that the Commissioner did not propose to adduce any evidence inconsistent with those matters, although he did not in fact concede them. Such matters might well be significant to a claim for indemnity costs from a particular point in time, but on no view can that point in time go back earlier than 5 June 1997. Accordingly, for present purposes, they are not of great moment.
It was nevertheless contended that the Commissioner's general attitude with respect to those issues was such as to warrant an indemnity costs order in any event in respect of the entire proceedings. While there is no dispute as to the Court's entitlement to make such an order in appropriate circumstances, the Commissioner contended that such an order was not appropriate in the present circumstances. Again, for practical reasons, it is necessary only to address the point of time up to 4 June 1996.
The relevant principles have been discussed in Colgate-Palmolive (above) and were pithily expressed by Lindgren J in MGICA (above, at 711) in the following terms:
"Clearly, the circumstances must take a case out of the "ordinary" or "usual" category if an order for indemnity costs is to be made, since, as noted earlier, the rules evince an intention that in that category of cases, an order for costs signifies an order for costs on a "party and party" basis. Perhaps the various "tests" which have been suggested are classifiable as "abuse of process", "ulterior or extraneous purpose" and "unreasonableness" tests."
Amongst the cases to which his Honour referred leading up to that conclusion was the decision of Woodward J in Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, in which (at 401) his Honour said:
"... in order to establish a convenient principle in such cases it is necessary to be a little more prosaic. I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts for the clearly established law. Such cases are, fortunately, rare. But when they occur, Court will need to consider how it should exercise its unfettered discretion."
Having regard to those principles, I have reached the view that it is not appropriate to order indemnity costs in respect of the three issues effectively for the period up to 4 June 1996. As I have said, the "running account" defence was but an incidental aspect of the submissions. The three grounds were treated, for present purposes, as a package.
I do not find that the material before me discloses that the Commissioner, properly advised, should have known that he had no chance of success either generally or in respect of the particular issues up to or by 4 June 1996. I am not therefore of the view that his conduct in relation to the defence of the proceedings, in relation to those issues, was such as to indicate some ulterior motive, or a wilful disregard of relevant facts or law, on his part. Knowledge of solvency or insolvency, and of the preferential effect of the two payments, was in the first instance primarily available to the applicant. The applicant had to prove those matters in any event in the proceedings. The applicant therefore had to prepare some evidence to support those conclusions at some point in the proceedings, unless the applicant had prior to the proceedings presented such information to the Commissioner as to persuade him that those issues should be conceded. There is no material before me that that was done. Once the proceedings were issued, in my view, the Commissioner was entitled to be given access to the relevant material in a cogent way before any question could arise as to the Commissioner acting unreasonably in relation to responding to that material. At best he could have received that material in about April 1996, although it is not clear now on the material before me whether he received that material when the reports were prepared, or only when the affidavits containing the reports were filed in June 1996. I do not think that it was unreasonable for the Commissioner not to have conceded issues of solvency or insolvency, and as to the preferential effect of the two payments prior to 4 June 1996. I do not conclude that the Commissioner, up to that time, was deliberately prolonging the claim, or otherwise engaging in some form of misconduct with respect to it, in relation to his response on those issues.
For the reasons given, I do not think that the applicant has made out a sufficient basis for exercising my discretion to award costs on an indemnity basis in respect of the three identified issues prior to and up to 4 June 1996. Up to that time, costs should be awarded on the usual basis.
Accordingly, I order:
(1) that the respondent pay to the applicant costs of the action
(a) up to and including 4 June 1996 on a party and party basis, and
(b) from and after 5 June 1996 on an indemnity basis but so that such costs not include costs of an unreasonable amount or costs which have been unreasonably incurred.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.