DELLA-VEDOVA AND SONS -v- DUSOL PTY LTD TRADING AS B W DUCKHAM & CO [2025] WASC 160 (6 May 2025)

'• Opposed and then conceded the application 25/11/21; and

• Maintained that the matters of consideration, a deed and the unconditional appearance are/were in issue and then not pursued them but proceeded as to accord and satisfaction, not pleaded, and
• Failed to file a reply'.

1. The 'application 25/11/2021' was the defendant's application for summary judgment, made after filing its defence and more than two months out of time. That application was dismissed on 28 February 2022, with the costs of the application ordered to be in the cause, fixed at $2,227.
2. As will be apparent from the primary reasons for decision, the defendant conceded in the District Court proceedings in which the defendant had sought payment of a further amount in respect of costs by the plaintiff that the defendant had not complied with its costs disclosure obligations. The consequences of that non-compliance was that the defendant did not have any entitlement to be paid costs until the court had assessed the amounts the defendant had charged the plaintiff for legal services, the amount (if any) the plaintiff might have to pay the defendant could not be known until the court completed its assessment, and that there had therefore been consideration for the agreement made between the parties whereby the plaintiff agreed to pay $100,000 to the defendant in satisfaction of the larger amount claimed to be payable by the defendant.
3. The first point relied upon by the defendant and Mr Duckham is therefore without merit. The defendant was not entitled to judgment in these proceedings, and consequently there was every reason for the plaintiff to oppose the defendant's application for summary judgment.
4. The second point directly contradicts the matters set out in [89] to [105] of my primary reasons for decision, particularly the ruling at [103] to [104] that the plaintiff had satisfactorily pleaded an accord and satisfaction, and the finding at [105] that the plaintiff had made it clear to the defendant in February 2022 that the agreement made in March 2019 constituted an accord and satisfaction.
5. The second point is therefore without merit.
6. In relation to the second point, Mr Duckham's written submissions referred to my having 'adverted' to the plaintiff not having pleaded accord and satisfaction 'in an interlocutory hearing after 20 January 2025'. In oral submissions on 19 June 2025 Mr Duckham submitted that I had said 'I will deal with the costs aspect of accord and satisfaction finally' at some point in the proceedings, which Mr Duckham submitted meant that I had indicated that I would grant the defendant 'some concession' in relation to the manner in which the statement of claim had been pleaded. Mr Duckham was, however, unable to state precisely what he claimed I had said, could not provide a transcript reference supporting his submission and said that he did not have a note of the statement he submitted I had made.
7. Contrary to Mr Duckham's written submission, there was no interlocutory hearing in the proceedings after 9 December 2024. I have reviewed the transcripts of the interlocutory hearings on each of 4 October and 9 December 2024 (Mr Duckham having failed to attend the brief hearing on 20 November 2024), and am satisfied that I did not make any statement to the effect asserted by Mr Duckham on either occasion.
8. As to the third point, O 20 r 15(1) provides that where a reply is not filed the matters pleaded in the defence are in issue. The third point is therefore also without merit, as the defendant and Mr Duckham should have been aware that was the position.
9. The matters raised by the defendant and Mr Duckham being without merit, and the plaintiff not having failed on any significant issue at trial, there is no reason to reduce the quantum of the costs payable to the plaintiff, whether pursuant to O 66 r (2) or otherwise.
10. As the plaintiff did not seek that its costs be paid on an indemnity basis or a special costs order pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA), it is unnecessary to consider whether a basis exists for making such an order.
11. I accordingly turn to the question whether an order should be made that Mr Duckham pay the costs of the proceedings.
12. The minute of proposed orders filed by the plaintiff sought orders to that effect pursuant to O 66 r 5. However, the plaintiff also referred at [20] to [24] of its written submissions in support of the application to the principle that, in an appropriate case, the court may order a person who is not a party to the proceedings to pay the successful party's costs of those proceedings.
13. In the course of his oral submissions, counsel for the plaintiff clarified that the plaintiff's application was made pursuant to O 66 r 5 and, in the alternative, in reliance upon the court's power to order a non‑party to pay costs.
14. The court has a wide discretion to award costs. It extends to ordering that a person not a party to the proceedings pay the costs of the proceedings. Such an order is not punitive, but compensatory, in the sense that the order is made in order to indemnify the successful party to the proceedings as to its costs, as opposed to punishing the non‑party.[2]
15. The discretion to do so has been described as 'absolute, unconfined or unfettered', although it is a discretion that must be exercised judicially, not arbitrarily or capriciously or on grounds unconnected to the litigation.[3] The discretion is to be exercised with caution.[4]
16. A non-party costs order is exceptional, as ordinarily only parties to proceedings will be ordered to pay costs. Departing from the usual basis on which an order for costs is made requires some special or unusual feature, in the sense that such an order should only be made where the justice of the particular case requires it.[5]
17. The categories of cases in which the discretion to order costs be paid by a non-party are not closed, the question being whether the circumstances of the particular case warrant the making of such an order in the interests of justice.[6] Courts have generally declined to specify rules which would fetter the discretion.[7]
18. In exercising the discretion in this case, it must be borne in mind that the proper defendant to the plaintiff's claim was the defendant company. At the time of the events giving rise to these proceedings, the defendant was an incorporated legal practice carrying on practice under the name 'B W Duckham & Co'.
19. It was the defendant which acted as the solicitors for the plaintiff firm in the CBSW proceedings to which the defendant's asserted entitlement to costs related, and to whom any liability which the plaintiff may have had in respect of costs was owed.
20. It must also be recognised that it will ordinarily not be sufficient to make a non-party costs order that a director caused the company to bring or defend proceedings, and played an active role in them, because it is expected that the directors of a company will be involved in the conduct of litigation to which it is a party.[8]
21. In Knight v FP Special Assets Ltd[9] Mason CJ and Deane J identified a 'general category of case' in which an order for costs could be made against a non-party as follows:[10]

For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active role in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.

1. At the hearing on 19 June 2025, Mr Duckham informed the court, in response to my question, that the defendant is not able to meet an order for costs against it.[11] As Mr Duckham is the sole director of the defendant and the admission was against his interest, I accept that is the position.
2. Even if that were not the case, it is not correct to say that a court only has discretion to order that a director of an unsuccessful corporate party pay non-party costs if the corporate party is insolvent (or a 'person of straw'). The relevance of an unsuccessful party being 'insolvent' or a 'person of straw' is that the successful party will have no realistic expectation that they will recover their costs against that unsuccessful party and, for that reason, will likely be left 'exposed and out of pocket'.[12]
3. As to whether Mr Duckham played an active role in the litigation, Mr Duckham was the person who dealt with Ms Della‑Vedova at the meeting on 25 February 2019 at which the proposal that the plaintiff pay $100,000 in satisfaction of the defendant's claim to further legal costs was made.
4. The plaintiff's pleaded version of events on that occasion was denied by the defendant. In addition, the defendant pleaded an alternative version of those events, to the effect that the plaintiff had merely requested a gross deduction of the amount due, rather than disputing that it was payable.
5. Mr Duckham was the sole witness for the defendant as to what occurred on that occasion, although he ultimately did not give evidence at the trial, having undertaken not to do so to avoid being enjoined from acting as counsel at the trial.
6. Prior to 17 March 2022, the defendant was represented in these proceedings by independent solicitors. On that date, the defendant filed a notice of change of representation, to the effect that it intended to act on its own behalf.
7. The next day, 18 March 2022, the defendant filed a second notice of change of representation, again to the effect that it intended to act on its own behalf.
8. On 22 June 2022, Duckham & Co Pty Ltd filed another notice of change of representation, to the effect that the defendant had changed solicitors, Duckham & Co Pty Ltd now acting for the defendant. The address for service identified for Duckham & Co Pty Ltd remained unchanged from the address specified for service in the notices filed by the defendant. For reasons that have not been explained, on 13 July 2022 Duckham & Co Pty Ltd filed a second notice of change of representation, in the same terms as the notice filed on 22 June 2022.
9. On each of those dates, notices of change of representation to identical effect were filed on behalf of the defendant in application LPA 16 of 2021.
10. Mr Duckham is and has been the sole director and secretary of the defendant since its incorporation in 2007 and the sole director and secretary of Duckham & Co Pty Ltd since at least 19 May 2022, having been appointed as a director and the secretary of that company upon the incorporation of Duckham & Co Pty Ltd on 24 November 1998.
11. I infer that the decisions to file each of the notices of change of representation were made by Mr Duckham, he being the sole director of the defendant.
12. As Mr Duckham was the sole director of the defendant at all relevant times, I further find that Mr Duckham was the person who provided instructions on behalf of the defendant in respect of the previous District Court proceedings between the parties, the institution and conduct of application LPA 16 of 2021 and the conduct of these proceedings.
13. I also find that Mr Duckham was the legal practitioner with responsibility for the institution and conduct of application LPA 16 of 2021, the defendant having acted in those proceedings on its own behalf from their commencement until 22 June 2022,[13] and these proceedings as from 17 March 2022, in addition to being the person responsible for the defendant's decisions regarding their conduct.
14. As the defendant had conceded in the District Court proceedings that the defendant had failed to meet its costs disclosure obligations, Mr Duckham knew before the defendant commenced LPA 16 of 2021 and the commencement of these proceedings by the plaintiff that was the position, with the consequence that Mr Duckham and the defendant should have known that the defendant's insistence that there had been no consideration for the agreement between the parties was misconceived before it commenced LPA 16 of 2021. Despite that, Mr Duckham determined that the defendant would seek an assessment of the same costs it had sought to be paid in those District Court proceedings, which led to the plaintiff to commence these proceedings to enforce the parties' agreement.
15. From at least 17 March 2022 Mr Duckham was the solicitor who conducted the proceedings on behalf of the defendant, and he appeared as counsel for the defendant at trial. Mr Duckham was the author of each of the amended defence filed 29 March 2022, the further amended defence filed 20 April 2022, the further amended defence filed 26 October 2023 and the further amended defence filed 21 May 2024, each of which was to the effect set out in [35] above.
16. Mr Duckham therefore played an active role in these proceedings, and was a 'real party' to it, in the sense that his involvement in the litigation went well beyond that of a mere director of a defendant company. It was his decisions, as the director of the defendant, the sole witness as to its version of events, the solicitor with the conduct of the matter and counsel at trial, which led to these proceedings and caused the plaintiff to incur the costs of them.
17. Mr Duckham therefore had a 'real, direct and material' connection with these proceedings, such that it is appropriate to describe him as a 'real party' to them.[14]
18. The court is unable to determine whether Mr Duckham had a direct financial interest in the outcome of the proceedings. The issues in these proceedings were limited to whether an enforceable agreement existed between the plaintiff and the defendant as to the amount of outstanding legal costs the plaintiff might be obliged to pay to the defendant.
19. The defendant's entitlement to any further amount was therefore dependent upon its being entitled to ignore the arrangement agreed by Mr Duckham with the plaintiff, and the court assessing the costs to which the defendant was entitled in LPA 16 of 2021 in an amount exceeding what had already been paid by the plaintiff to the defendant.
20. There are 100 issued shares in the defendant, which a search of the Australian Securities & Investment Commission's records conducted as at 12 November 2024 showed to be held non‑beneficially by Hong Kong Development Corporation Pty Ltd.
21. ASIC's records in relation to Duckham & Co Pty Ltd as at 12 November 2022 shows Hong Kong Development & Co Pty Ltd to hold all of the issued shares in Duckham & Co Pty Ltd, albeit non‑beneficially.
22. The beneficial holders of the shares in Hong Kong Development & Co Pty Ltd are shown by ASIC's records to be Mr Duckham and a person whom I infer to be Mr Duckham's wife, based on the fact that she was appointed a director of the company on the same date in 1976 as Mr Duckham and has the same residential address as him. Mr Duckham and his wife have been directors of that company since its incorporation.
23. The circumstances in which Duckham & Co Pty Ltd came to act for the defendant, from the same address as that of the defendant, were not explained.
24. Mr Duckham asserted in submissions, unsupported by evidence (which it was clearly within his power to adduce), that the shares in the defendant are held by Hong Kong Development Co Pty Ltd as trustee for 'the Cleve Trust', of which Mr Duckham asserted he was a 'discretionary beneficiary', by which I understood him to mean that he claimed to be an object of a discretionary trust.
25. At the hearing on 19 June 2025 I refused Mr Duckham's oral application to give oral evidence regarding his status as an object of a discretionary trust, because there was no indication that Mr Duckham intended to produce a copy of any trust deed supporting his asserted position, the matter had been adjourned for the making of final orders for some time, and on 9 December 2024 I had informed Mr Duckham that I would not accept assertions regarding the manner in which the defendant's affairs were structured unsupported by evidence. On that date, I held that assertions to the same effect made in the course of an interlocutory application were inadmissible, the defendant having failed to produce the documents which would have allowed an assessment to be made as to whether they were correct.
26. In the absence of evidence as to Mr Duckham's status as an object of any trust and the circumstances in which Duckham & Co Pty Ltd appears to have come to carry on these proceedings in place of the defendant, I have disregarded Mr Duckham's assertions regarding the manner in which he, the defendant, Duckham & Co Pty Ltd and Hong Kong Development Co Pty Ltd may have structured their affairs.[15]
27. It is not necessary, however, that a party have a direct financial interest in proceedings in order for the court to make a non-party costs order,[16] although that is a significant factor to be considered in the exercise of the discretion, as is whether the non-party has funded a party's conduct of proceedings.[17]
28. Further, Mr Duckham had a direct personal interest in the proceedings. Although he ultimately did not give evidence at the trial, on the pleadings his credibility as to what occurred at the meeting between he and Ms Della‑Vedova was in question. In a wider sense, his reputation was also in question, the proceedings raising the question whether Mr Duckham is a man who honours the agreements that he makes, irrespective of whether he is legally obliged to do so.
29. In all the circumstances of this case, it would be profoundly unjust were the plaintiff to be left with an order for costs against the defendant when the defendant is unable to meet all or any part of the award of costs. Mr Duckham's involvement in the proceedings has been such that it is just and reasonable that he reimburse the plaintiff for the costs of the consequences of his views as to the validity of the agreement he made on the defendant's behalf, if the defendant cannot pay them.
30. I therefore consider that the appropriate order is that Mr Duckham be jointly and severally liable with the defendant for the costs of the action. The costs Mr Duckham will be liable to pay are to include those costs which the court has previously awarded against the defendant.
31. In determining to make those orders, I have had regard to Mr Duckham's submissions to the effect that the court cannot or should not make orders to the effect that a non‑party pay costs which are the subject of a previous order of the court.
32. I reject those submissions. The making of a non party costs order is supplemental to any order for costs previously made in proceedings. A decision to make a non-party costs order involves the exercise by the court 'of a new discretion', rather than the re‑agitation of issues which have already been determined.[18]
33. Having determined that the court should exercise its discretion to order that Mr Duckham pay the costs of the proceedings in the exercise of the discretion to order a non-party to pay costs, it is unnecessary to decide whether an order should be made pursuant to O 66 r 5.
34. Subject to hearing from counsel, as the plaintiff has substantially succeeded in the action and in relation to the issues raised at the hearing on 19 June 2025, it appears appropriate that the defendant and Mr Duckham pay the costs of and incidental to that hearing and the appearances to take judgment.
35. For those reasons I will make orders in the following terms:

(a) the partly oral and partly written agreement made 12 March 2019 between the plaintiff by Lucia Della‑Vedova and the defendant by Bruce William Duckham to the effect that the plaintiff pay $100,000 inclusive of goods and services tax in settlement of any liability the plaintiff might have to the defendant in respect of legal costs and disbursements incurred in relation to District Court of Western Australia Action CIV 783 of 2016 is valid and effective;
>
> (b) payment of that amount having been made by the plaintiff, the plaintiff has no liability to the defendant in respect of legal costs and disbursements incurred in relation to that action.

1. The defendant be enjoined and a permanent injunction is hereby granted restraining the defendant by its servants, agents or otherwise from taking any further step in Supreme Court of Western Australia application LPA 16 of 2021, save for being heard as to the costs of those proceedings. 2. The defendant and Bruce William Duckham jointly and severally pay:

(a) the plaintiff's costs of the action, including all reserved costs, to be assessed if not agreed;
>
> (b) the costs of and incidental to the hearing on 19 June 2025 and of today, those costs to include the costs of the written submissions filed 25 June 2025.

1. The costs payable by Bruce William Duckham pursuant to order 3(a) include those costs the defendant has previously been ordered to pay to the plaintiff.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Della-Vedova and Sons -v- Dusol Pty Ltd trading as B W Duckham & Co [2025] WASC 160.

[2] Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [No 4] [2012] FCAFC 50; (2012) 200 FCR 154 [93].

[3] Hyper Electronics Pty Ltd (in liq) v Mead [2004] NSWSC 731; (2004) 61 NSWLR 169 [42]

[4] Permark International Interiors Pty Ltd v Amoveo Pty Ltd [2013] VSC 563 [26].

[5] See the authorities identified by Lundberg J in Re Sprintex Ltd (No 3) [2025] WASC 59 [45]-[46].

[6] M C Wholesaling Pty Ltd v Zheng [2024] VSCA 248 [47], [54],

[7] See, for example, Vestris v Cashman (1998) 72 SASR 449, 468.

[8] Kyne v Gerard Brandrick & Associates Pty Ltd [2025] NSWCA 17 [71].

[9] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178.

[10] Knight v FP Special Assets Ltd, 192-193.

[13] Bearing in mind that on 11 October 2021 Registrar Hosking ordered that application LPA 16 of 2021 be adjourned sine die, pending the determination of these proceedings.

[14] See Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198, 205; Kebaro Pty Ltd v Saunders [2003] FCAFC 5 [103].

[15] I note that, as a director of Hong Kong Hong Kong Development Co Pty Ltd, Mr Duckham would likely have had a sufficient interest in the proceedings if he was an object of a discretionary trust as he asserted: see Ipex ITG Pty Ltd (in liq) (rcvrs apptd) v Victoria (No 2) [2014] VSCA 315 [41].

[16] Ipex ITG Pty Ltd (rec and mgr apptd) v Melbourne Water Corporation [2012] VSCA 169 [74].

[17] See, for example, PM Works Pty Ltd v Management Services Australia Pty Ltd [2018] NSWCA 168 [35].

[18] UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [1998] VSC 13; [1999] 1 VR 204 [9]; Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] QSC 195; [2009] 2 Qd R 499 [54].