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Judgment 1On 4-6 September 2013, I heard several motions filed by the parties in these proceedings dealing with, inter alia, the adoption of a referee's report, several Cross-Defendants' application to strike out the Amended Cross-Claim, the Cross-Claimants' application for leave to file a Further Amended Cross-Claim and the Cross-Claimants' application to extend the time, nunc pro tunc, to file objections and falsifications in respect of the accounts of certain trusts. I delivered judgment on 18 October 2013 ("October judgment") and, on 8 November 2013; I made further directions dealing with the conduct of the proceedings consequential upon the October judgment. In this judgment, I deal with the question of costs in respect of the applications. 2The Cross-Claimants contend that the result of the motions before me was mixed and that the appropriate order is that the costs be costs in the cause. The Cross-Defendants seek different orders in respect of costs of the particular motions. It will be convenient to deal first with the applicable principles and then with the question of costs by reference to the particular motions heard in September 2013. The applicable principles 3It is first necessary to say something as to the principles by which costs are awarded, including on an indemnity basis. Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides that: "Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court; and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) in turn provides that, where the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. UCPR r 42.2 states the general rule that costs payable to a person under an order of the Court or these rules are to be assessed on the ordinary basis. UCPR r 42.5 provides for orders for indemnity costs. 4There are, of course, several well-recognised principles applicable to an order for costs, including that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tasmania) (1956) 95 CLR 460 at 477; Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 per McHugh J, at 129-123 per Kirby J; Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234. In Howard's Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84, Gray J observed at [17] that: "The overriding principle that costs are in the discretion of the court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding." 5The relevant principles were summarised by the Court of Appeal of the Supreme Court of Victoria in Chen v Chan (No 2) [2009] VSCA 233 at [10] as follows (omitting footnotes): "1. The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim. ... 3. Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount. 4. A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice. 5. Where a court determines to make an order apportioning costs, then it does so primarily as "a matter of impression and evaluation," rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter." 6Special circumstances are necessary to warrant a departure from the usual course of an order for payment of costs on a party/party basis. In Colgate-Palmolive Co v Cussons Pty Ltd (1993) (1993) 46 FCR 225; 118 ALR 248 at 256-257, Sheppard J summarised a number of principles as to an order for indemnity costs as follows: "It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: ... 2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. ... In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity. ... 4. In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require''. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: "the categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata. 5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice." 7It should be recognised that an order for indemnity costs is not a punishment but serves the purpose of compensating a party fully for costs which it has incurred when it was unreasonable for the other party to have subjected the innocent party to the expenditure of those costs: Hamod v State of NSW [2002] FCA 424; (2002) 188 ALR 659 at [20]. In White Constructions (ACT) Pty Ltd (in liq) v G B White [2004] NSWSC 303 at [5]-[11], in a passage subsequently quoted in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 at [24], McDougall J also summarised the applicable principles to an award of indemnity costs as follows: "The basis upon which the discretion to award indemnity costs should be exercised has been examined in a very great number of cases. But, as those cases make clear, the discretion is not confined or limited except to the extent that it is required to be exercised judicially: see for example Harrison v Schipp [2001] NSWCA 13 at [139] (Giles JA, with whom Handley and Fitzgerald JJA concurred); see also Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 256-257. What is required, in any case, is that the Court examine the facts of that case in the light of such statements of principle as may be relevant. In the ordinary way, the Court will take into account, as offering guidance, statements of principle made by those to whom the particular judicial officer should have regard. At the most basic level, the statements of principle indicate - not unsurprisingly - that there must be some sufficient special or unusual feature to justify departure from the ordinary rule. I take the basic principle to be as stated by Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at 9. Their Honours said at [44] (I omit citations): "It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs, but for costs on a 'solicitor and client' basis, or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what would otherwise have been the position of the unsuccessful party in the absence of such delinquency on its part." I read what their Honours said on the basis that "some relevant delinquency" does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case: see for example Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415; NMFM Property Pty Limited v Citibank Limited (No 2) (2000) 109 FCR 77." 8The summary of principles in Colgate-Palmolive Co v Cussons Pty Ltd above was also applied in Lahoud v Lahoud [2006] NSWSC 126 at [11] and in Ng v Chong [2010] NSWSC 127 at [18] and the relevant principles were recently applied by the Court of Appeal in Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6], where the Court observed that an order for indemnity costs may be made where conduct in proceedings is "plainly unreasonable" or involves some element of delinquency. In Liverpool City Council v Estephan [2009] NSWCA 161 at [100], Giles JA observed that s 56 of the Civil Procedure Act 2005 (NSW) adds emphasis to the occasion to depart from costs on an ordinary basis where a failure to properly conduct the proceedings has caused costs to be incurred unnecessarily, but does not override the need for a rational connection between the reason for that departure and the extent of that departure. Costs of issue as to whether the referee's report should be adopted 9The first issue agitated in the September hearing and determined in the October judgment was whether the Court should adopt the report of a referee in respect of the accounts of the trusts. By Points of Cross-Claim dated 16 April 2013, the Cross-Claimants, Mr Dominic Iacullo (to whom I will refer, without disrespect, as "Dominic") and Mrs Lillian Iacullo (to whom I will refer, without disrespect, as "Lillian") sought an order that the schedules to the referee's report stand as the Cross-Defendants' statement of the accounts of the five trusts in issue in the proceedings, but not as a determination by the Court of the validity or accuracy of their statements of the accounts of the trusts, and an order that the report not otherwise be adopted. Conversely, by Amended Notice of Motion filed on June 2013, the Third-Eighth Cross-Defendants ("Murr Parties") applied for an order that the referee's report "be adopted in full to be used as evidence in the proceedings". 10I dealt with the question whether the referee's report should be adopted in paragraphs [5]-[50] of the October judgment and held that the referee's report should be adopted in full. I rejected Dominic's and Lillian's submission that it should be, as they contended, adopted only as a statement of accounts provided by the Cross-Defendants, although I noted that the adoption of the report, in accordance with its terms, did not preclude Dominic and Lillian from addressing issues that were not within the scope of the reference and had not been determined by the referee, and, in particular, any contention that particular transactions were unlawful. In these circumstances, the Murr Parties (and the First-Second Defendants, Mr Luigi Iacullo and an associated entity - to whom I will refer, without disrespect, as the "Luigi Parties" - to the extent that they had adopted the Murr Parties' submissions) were substantially successful as to this issue. 11The Murr Parties contend that they should have the costs of their Amended Notice of Motion filed 14 June 2013 relating to adoption of the referee's report on an indemnity basis. In their submissions as to costs, the Murr Parties characterise a previous dispute in March 2012 as to the terms of the reference as involving an attempt by the Cross-Claimants to "frustrate the reference". In that application, the Cross-Claimants sought to terminate the reference, although I ultimately held that it should not be terminated but the terms on which it was taking place should be amended, and held that, where the Cross-Claimants had secured a measure of success in clarifying the matters before the referee, the costs of that earlier motion should be costs in the cause in the Cross-Claim. The Murr Parties also point out that the Cross-Claimants had then resisted the adoption of the referee's report, as I noted above, and that the referee's report had been adopted in full. 12It seems to me that the issue as to the adoption of the referee's report was a discrete issue in the proceedings, in that the costs of the substantial argument as to the adoption of the referee's report would not have been incurred had the Cross-Claimants not opposed the adoption of that report other than on the very limited basis for which they contended. I consider that Dominic and Lillian should pay the Murr Parties' costs of this issue. However, I do not consider that any special circumstances are established to warrant an order for costs other than on the ordinary basis. In particular, I do not consider that the outcome of the earlier dispute in March 2012 supports an order for indemnity costs, or that it has been established that Dominic and Lillian were seeking to "frustrate the reference", notwithstanding the extent of dispute as to its process and what it determined. 13I assume the Luigi parties seek a corresponding order for costs in respect of this motion, having not pressed a wider claim as noted below. I will make such an order in their favour, although it may be of little practical significance where they were represented by Mr Luigi Iacullo rather than by legal representatives on the hearing of the motion. Costs as to the Amended Cross-Claim and Further Amended Cross-Claim 14The Murr Parties' Amended Notice of Motion filed 14 June 2013 also sought an order refusing leave to the Cross-Claimants to file and serve their proposed Further Amended Cross-Claim and the Murr Parties were successful in that regard. They also sought an order that the existing Amended Cross-Claim be struck out in its entirety and were not successful in obtaining that order. Alternatively, the Murr Parties sought an order that any Amended Cross-Claim which was filed not include a relatively long list of paragraphs, and they extended that application to contend at the September hearing that the corresponding paragraphs of the Amended Cross-Claim should be struck out. They were successful in obtaining an order that a significant number of paragraphs should be struck out, although the number of paragraphs struck out was substantially less than those which they had sought to have struck out. Conversely, it follows that Dominic and Lillian were successful in sustaining a significant number of paragraphs in the Amended Cross-Claim to which objection had been taken by the Murr Parties. The Murr Parties had initially also sought an order or declaration that, as a consequence of the deletion of the specified paragraphs, Dominic and Lillian were not entitled to the large part of the relief claimed in the proposed Further Amended Cross-Claim, and no such order was made. 15The Murr Parties contend that they should have the costs of their Amended Notice of Motion filed 14 June 2013 opposing the filing of the proposed Further Amended Cross-Claim on an indemnity basis. I assume the Luigi Parties seek a corresponding order, having not pressed a wider order for costs as noted below. The Murr Parties submit that substantial parts of the existing Amended Cross-Claim had been struck out and that the Court had refused Dominic's and Lillian's application to file the proposed Further Amended Cross-Claim. As I noted above, significant parts of the Amended Cross-Claim had indeed been struck out, although substantial parts remain and I have refused the application to file a proposed Further Amended Cross-Claim but, with some hesitation, permitted the Cross-Claimants an opportunity to further amend the Cross-Claim to address its deficiencies. 16I accept that the Murr Parties had a significant degree of success in respect of the issues as to the application to strike out the Amended Cross-Claim and their opposition to the filing of the Further Amended Cross-Claim. It seems to me that this was also a discrete issue in the proceedings, in that the costs of argument as to the existing Amended Cross-Claim and the proposed Further Amended Cross-Claim would not have been incurred had Dominic and Lillian been more ready to accept that it would be necessary to plead the material facts on which they relied and, where allegations of dishonesty were made, to properly identify the basis of those allegations. However, I do not consider that I should order that Dominic and Lillian pay the entirety of the Murr Parties' costs of these issues, where they had a degree of success in maintaining paragraphs of the existing Amended Cross-Claim to which exception was taken by the Murr Parties. I consider that a proper order for costs, reflecting the parties' respective degrees of success, is that Dominic and Lillian pay 60% of the Murr Parties' costs in respect of these issues. While that figure is necessarily a matter of impression rather than mathematical certainty, it reflects the fact that the Murr Parties had substantial but by no means complete success in this regard. 17The Murr Parties contend that an order for indemnity costs should be made under s 98(1)(c) of the Civil Procedure Act 2005, and refer to the decision in Re Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (No 2) [2012] NSWSC 881, where I referred to the decision of Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd above and the subsequent authorities which have followed it. In that case, I made an order for indemnity costs against a plaintiff that had failed to respond to proper requests for identification of the basis of a claim against another party, had maintained that claim over a considerable period, putting that other party to significant costs, and had abandoned that claim at the hearing of the application. I noted that, in that case, the conclusion was properly open that the proceedings were commenced and continued in circumstances where the plaintiff, properly advised, should have known that the proceedings could not be maintained against that party. On the other hand, in facts which were closer to the present case, an order for costs on an ordinary basis was made against the plaintiff where its claim against another party was struck out, with leave to file an amended pleading. 18It will be clear from the October judgment that I have concerns as to several aspects of the conduct of these proceedings. Nonetheless, I do not think that it can be said that the approach adopted by the Cross-Claimants in respect of the Amended Cross-Claim or the Further Amended Cross-Claim involved sufficient delinquency to warrant an order for costs on an indemnity basis in respect of the motion as a whole. Plainly, there were aspects of the pleading which were unsatisfactory, including the pleading of material facts in respect of allegations of accessorial liability and the pleading of allegations of dishonesty without sufficient identification of the facts relied upon for those allegations, and those resulted in an order striking out the relevant paragraphs. However, this was not a case where the Court could presently hold that there was no proper basis for such allegations, as distinct from holding that any basis for them was not properly pleaded, and substantial parts of the Amended Cross-Claim remain on foot. I am not satisfied that an order for costs on an indemnity basis is justified in this regard. 19All Cross-Defendants sought an order that the Cross-Claimants thrown away by the filing of any Further Amended Cross-Claim on an indemnity basis. Mr Smallbone, who appears for Dominic and Lillian, accepted that the usual order in respect of the filing of an amended process would be that the Cross-Claimants pay the costs thrown away, but contended that such an order was premature where the leave to file a Further Amended Cross-Claim had not yet been exercised. I do not consider that the Court is in a position now fairly to exercise a discretion as to whether to make such an order, still less whether to do so on an indemnity basis, until the content of any Further Amended Cross-Claim becomes clear. I will therefore defer the question whether, and on what basis, such an order should be made to that point. Murr Parties' application for leave to assess costs forthwith and for interest 20The Murr Parties also seek an order under UCPR r 42.7(2) that the costs of the motion be payable forthwith and Dominic and Lillian oppose such an order. That rule provides that, unless the Court otherwise orders, the costs of any interlocutory application in proceedings are to be paid and otherwise dealt with in the same way as the general costs of the proceedings and do not become payable until the conclusion of the proceedings. An order of the kind made by the Murr parties is most commonly made where a costs order is relevant to a discrete, separately identifiable part of the proceedings or the costs liability will not be affected by the final outcome of the proceedings. The question when the Court could make such an order was considered by Barrett J in Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432 at [18]; (2002) 55 NSWLR 1 where his Honour held that it was appropriate to make such an order where an interlocutory hearing involved a separate and completed phase of the proceedings; the orders made had the result that, in effect, there would be a new beginning of the proceedings after that application; the defendant's costs of the application were increased by the service of voluminous material, much of which was not referred to; and the likely timing of a final hearing, in that case, was in the order of a year after the interlocutory hearing. 21In Brasington v Overton Investments Pty Ltd [2001] FCA 571 at [13]-[14], Emmett J identified the rationale of the principle that costs of interlocutory proceedings were not ordinarily paid forthwith as that: "Since an interlocutory proceeding does not resolve the final issues between the parties, it would, in ordinary circumstances, be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately, since that party might ultimately be entitled to an order for costs in the substantive proceedings. The general principle appears that costs ought to be resolved when the proceeding has been concluded, and the rights of the parties have been finally determined." On the other hand, his Honour noted at [14] that the principle might not be applied where costs have been incurred by reason of an application that is misconceived and should never have been brought, and that it would be relevant that a final decision is some way off in a proceeding, because it is lengthy and complex or for some other reason. 22The authorities as to when such orders should be made were comprehensively reviewed by Katzmann J in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347 at [13]ff, where her Honour noted that different views had been expressed in the Federal Court of Australia in that regard and referred, inter alia, to the observation of Lindgren J in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 14) (unreported, 18 August 1995) that the provision for costs to be paid forthwith was "possibly underutilised" in "lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn" and to Brasington v Overton Investments above. In that case, her Honour held that an applicant's position in resisting an order for security for costs had been unreasonable and misconceived, but did not make an order that costs be payable forthwith in the relevant circumstances. 23In Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503, Besanko J observed that the usual approach that costs are not resolved until the end of a proceeding serves the general interests of justice because it avoids multiple taxations and an apparent unfairness where a party who is initially successful is ultimately unsuccessful or vice a versa, and prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties, and also recognised (at [21]) that: "The Court may order that costs be paid forthwith, and the cases suggest that [this] power may be exercised in circumstances in which there is an element of unreasonableness in the conduct of the unsuccessful party, and it is likely that there will be a long delay between the interlocutory proceeding and the conclusion of the principal proceeding." 24Such an order has been made in this Court, for example, where the result of a motion represents complete success for a party on a discrete and substantial part of the proceedings and, absent that order, costs would not be payable for a significant period: Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 586 at [4]; Re Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) above at [16]. These decisions were considered by Davies J in Griffin v Coe (No 2) [2012] NSWSC 1239, in somewhat similar circumstances where a defendant was partly successful in striking out proceedings, and Davies J did not make such an order. On the other hand, in UGL Services Pty Ltd v F1 Solutions Pty Ltd [2012] FCA 245, Jagot J departed from the usual rule and made an order for costs forthwith where she was satisfied that a summary judgment application was misconceived. 25On balance, I am not satisfied that this is a proper case for an order for costs to be assessed and paid forthwith against Dominic and Lillian. They were, admittedly, unsuccessful in opposing an order for adoption of the referee's report, but the dispute as to the nature of the task undertaken by the referee has raised complex issues over a considerable period. They were unsuccessful in obtaining leave to file a Further Amended Statement of Claim in its proposed form but the Murr Parties were correspondingly unsuccessful in their application to strike out of the existing Amended Cross-Claim in its entirety, although they achieved a substantial measure of success in respect of some aspects of that pleading. I have also emphasised in the October judgment that this matter ought to be managed in a manner that will lead it to be set down for hearing in the first half of 2014, so it does not seem to me that this is a case where a determination of the final result of the proceedings and the consequential costs will be long deferred. 26The Murr parties also contend that they should have interest on such costs under Civil Procedure Act s 101(4). Dominic and Lillian did not oppose such an order for interest, which they accepted was in conventional form, but pointed out that such an order depended on the making of an order for costs in favour of the Murr Parties at this point, which they opposed. It does not seem to me necessary or appropriate to determine this application at this point, where I have not made an order that costs of this application be payable forthwith. The question of interest is better addressed in the context of the costs of the proceedings as a whole, of which the costs of these applications will ultimately form part. Costs of the motion for extension of time 27The Murr Parties also seek their costs in respect of a motion filed by Dominic and Lillian on 20 August 2013 seeking an extension of time, nunc pro tunc, to file and serve objections, falsifications and surcharges, but do not seek any order that those costs be paid on an indemnity basis. I assume that the Luigi Parties also seek costs on that basis, having not pressed an order for costs on a wider basis. Dominic and Lillian were successful in obtaining such leave, but accept that the leave granted was an indulgence and do not seek their costs against the Cross-Defendants in that regard. The Murr Parties had not initially opposed the extension of time, although it ultimately became necessary for the Cross-Claimants to satisfy the Court that such an extension was appropriate in the relevant circumstances, and the Murr Parties opposed the filing of those documents in written submissions on substantive grounds rather than expressly by reason of their lateness. 28In some circumstances, a party which seeks a dispensation from the Court may be required to pay the costs of other parties affected by the application: compare Chand v Azurra Pty Ltd (in liq) [2011] NSWCA 58; (2011) 82 ACSR 383. I am not satisfied, however, that the present application, or the Cross-Defendants' role in it, was such as to warrant a departure from the position that Dominic and Lillian accept, namely that the costs in respect of that application should be costs in the cause. Other costs orders sought by the Cross-Defendants 29The Luigi Parties initially sought an order that the Cross-Claimants pay their costs from 25 March 2008, when a Cross-Claim was initially filed against them, thrown away by the filing of an Amended Cross-Claim on an indemnity basis. Each of the Cross-Defendants initially also sought orders that the Cross-Claimants pay costs of hearings before Bergin CJ in Equity on 19 May and 3 June 2011 relating to the Cross-Claims and varying an order as to costs that I had made on 5 April 2012 to provide for Dominic and Lillian to pay their costs of a motion filed on 16 February 2012. Those applications were sensibly not pressed where they did not have a particularly close relationship with the October judgment and would have diverted parties' efforts to an examination of those earlier matters and led all parties to incur further costs in that regard. Claim for costs in respect of joinder of Homeline Building Pty Limited 30Finally, by motion dated 10 May 2013, Dominic and Lillian sought orders that they have leave to file the Further Amended Cross-Claim in the form to which I referred above; that Homeline Building Pty Limited ("Homeline Building") be joined as Ninth Cross-Defendant in that Cross-Claim; and that certain proceedings between Homeline Building and the Eighth Cross-Defendant, Gladcon Pty Limited, in the Common Law Division of this Court be stayed until further order, with a view to determination of the relevant issues in these proceedings. Dominic and Lillian were unsuccessful in that application, because they were unsuccessful in obtaining leave to file the Further Amended Cross-Claim which introduced the claims against Homeline Building. It was not necessary for me to address a wider range of issues in respect of that application, to which I referred in paragraph [131]-[147] of the October judgment. 31Homeline Building contends that Dominic and Lillian should pay its costs of the application on an indemnity basis and that it should have leave to have its costs assessed and paid forthwith and should have interest on the costs or disbursements from the time they were paid. Dominic and Lillian contend that the question of costs of that application should be deferred until after any further application brought by them to join Homeline Building as party to the proceedings on the basis of any further Amended Cross-Claim which they may seek leave to file. 32I am satisfied that an order for costs should be made in favour of Homeline Building in respect of this application on the usual basis that costs follow the event. Irrespective of whether Dominic and Lillian are ultimately successful in obtaining a further order to join Homeline Building as party to the proceedings, on the basis of a further pleading which addresses the deficiencies to which I referred in my October judgment in respect of the existing claim against Homeline Building, Homeline Building was successful in resisting the application brought to join it on the terms of the Further Amended Cross-Claim, and that warrants an order for costs in its favour on the usual basis. Although I was not satisfied that the claim against Homeline Building was properly pleaded, for the reasons set out in the October judgment, I am also not satisfied that there was sufficient delinquency in respect of the pursuit of that claim or the defence of it in the application before me to warrant an order for indemnity costs. 33However, I am satisfied that, to the extent that leave might be required for Homeline Building to have its costs assessed and paid forthwith, it should be granted on the basis the relevant application was a discrete application as to which Homeline Building has been substantially successful, and a further application by the Cross-Claimants to join it on the basis of a further amended pleading would not alter that result. An order that Homeline Building should be entitled to have its costs assessed and paid forthwith is squarely within the principles identified in Fiduciary Ltd v Morningstar Research Pty Ltd, Ritson v Gay & Lesbian Community Publishing Ltd and Australian Property Custodian Holdings to which I referred above. 34Homeline Building also seeks an order that it have interest on those costs; as I noted above, Mr Smallbone did not contest that such an order was appropriate, if an order for costs to be assessed and paid forthwith were otherwise made; and such an order should be made in favour of Homeline Building. 35The Murr Parties also seek an order that the Cross-Claimants pay their costs in opposing this motion. I do not consider it appropriate to make such an order since, even putting aside the question whether Homeline Building and the Murr Parties were in a common interest in respect of the application, it does not seem to me that it was necessary for the Murr Parties (or the Luigi Parties, if they also seek costs in this regard) to incur costs in resisting that application where it was already being vigorously resisted by Homeline Building. 36In summary, orders should be made to the effect that:

1. The Cross-Claimants pay the Cross-Defendants' costs of and incidental to the issue as to whether the referee's report should be adopted on the ordinary basis, as agreed or as assessed.
2. The Cross-Claimants pay 60% of the Cross-Defendants' costs of and incidental to the issues as to whether the Amended Cross-Claim should be struck out and leave granted to file the Further Amended Cross-Claim on an ordinary basis, as agreed or as assessed.
3. The Cross-Claimants pay the costs of Homeline Building of and incidental to the applications concerning the proposed claims against it heard in September 2013 on an ordinary basis, with interest under Civil Procedure Act s 101(4), and Homeline Building is to have leave to have those costs assessed and paid forthwith to the extent such leave is required. 37The parties should bring in Short Minutes of Order to give effect to this judgment within 7 days.