DPP v Langford

"... We accept as a general principle that where a party litigates for some time and then acts so as to effectively surrender or capitulate to the other, that will usually be a strong ground to award costs against the party who has surrendered or capitulated. But each case will depend on its own facts."[35]

(l) having regard to the substance of the exclusion orders which were made in this matter, for the purpose of the costs application pursuant to s133A of the Act, the applicant has been "successful in those proceedings" for the purposes of s133A of the Act;

(m) if the Court is minded to make an order in favour of the applicant under s133A, the order should not be discounted, since, amongst other things, the aspects of the application which were not pursued by the applicant, were not the subject of separate argument, evidence or submission, such as to warrant an apportionment. The authorities eschew approaching apportionment of costs by "arithmetical precision".[36] As to this, the applicant relied upon the observations of the Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2),[37] where the Court stated:

"Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory."[38]

(n) furthermore:

(i) the applicant assisted the respondent by:

(A) consenting to every adjournment of the proceeding sought at the request of the respondent, despite the applicant indicating its desire to proceed;[39]

(B) providing to the respondent what further information the respondent requested;[40]

(ii) the applicant compromised his exclusion application in order to avoid further delay in prolonging the proceedings and to facilitate release of monies to him before Christmas 2024. In doing so, he has exposed himself to a challenge that he is not entitled to costs at all;

(iii) having finally accepted the main aspects of the applicant's claim on 22 November 2024, the respondent should have moved forthwith to exclude those aspects unconditionally, as it had with the first exclusion order. Instead, however, it tied those accepted aspects of the claim to a global settlement with no order as to costs;

(iv) there was significant work involved in bringing and prosecuting the application, involving many adjournments and correspondence; and

(v) given that the principal purpose of a costs order is compensatory, there should be no discount for any "assistance" by the respondent. In any event, the applicant does not accept that it "required" assistance;

(o) in the circumstances, it was submitted that the Court should order that the respondent pay the applicant's costs on an indemnity basis, to be taxed in default of agreement. It was submitted that this is the appropriate order, since the power conferred by s133A(2) of the Act is a power to order "all" costs incurred. Such wording reflects an intention by Parliament to enable a more generous costs order be made than the usual order for party/party costs.[41] Any costs order should be made consistent with the effect and policy of s133A. It has been noted that the policy which underpins s133A is that if an applicant satisfies the preconditions in that section, they should not be required to pay their own costs;[42]

(p) alternatively, the Court should order that the respondent pay the applicant's costs of the application, including reserved costs, on a standard basis, to be taxed in default of agreement;

The Applicant's submissions in relation to the costs of the cost application

1. In addition to the costs order in respect of the application, the applicant also submitted that the Court ought award him the costs of this costs application ("the costs application").
2. As to this, it was submitted that even if the Court is satisfied, in relation to the costs of the application, that there should be some apportionment, all of the applicant's costs of the costs application should be paid by the respondent, because the respondent opposed the applicant's claim for costs in its entirety. Thus, any award of costs in the applicant's favour would mean that the Court had rejected the respondent's submissions that s133A of the Act does not apply to this case.

1. The respondent opposed the application for costs. It was submitted that the Court should make an order that each party bear their own costs.
2. In support of this submission, the respondent relied upon the affidavit of Ms Peel, sworn on 25 July 2025 ("the Peel affidavit"), together with the documents contained in the bundle exhibited thereto marked TP-1.[43] The respondent also filed a written submission dated 25 July 2025.
3. The respondent submitted that where a proceeding falls within a type contemplated by s133A(2), (3) or 3(a), s133A "exhaustively" governs the Court's power to award costs.[44] In this context, the respondent accepted that the central issue for determination by this Court is a consideration of whether or not the applicant has been "successful in those proceedings".
4. It was submitted that the applicant was not "successful in those proceedings" and therefore, has not met all of the applicable criteria for an award of costs under s133A. Further, by reason of the wording of s133A(1A), if a proceeding is of a type contemplated by s133A(2), (3) or 3A), unless each of the three criteria in s133A(2)(a) are met, there is no power to award costs.
5. In the alternative, it was submitted that if the Court concludes that the applicant has been "successful in those proceedings", then:

(a) the discretion to award costs under s133A should not be exercised; alternatively

(b) the discretion should be exercised to award costs on a standard basis, subject to a significant discount for the following reasons:

(i) the applicant bore the onus in relation to the application once the RO had been obtained;

(ii) the respondent was required to give the applicant assistance in identifying the evidence necessary for it to consider excluding property from the operation of the RO; and

(iii) the applicant obtained a mixed outcome on matters that are properly considered separable.

1. Further or alternatively, it was submitted that:

(a) if the Court concludes that the applicant was not "successful" for the purposes of s133A(2), the Court may conclude that this matter would fall into the category contemplated by s133A(1A), namely, "any circumstances not referred to this section" and therefore, that the ordinary rules relating to costs apply;

(b) in this circumstance, by reason of the fact that the matter was resolved by consent (meaning that there has been no hearing on the merits):

(i) the standard rule as to costs which "embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour",[45] would have no application to the present case; and

(ii) the appropriate order is that each party bear their own costs.

(c) in support of this contention, the respondent referred to numerous authorities,[46] placing particular reliance on the decision of the Hight Court in Lai Qin, where the Court made the following observation:

"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs (l). Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order.[47] When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order."[48]

1. As to the applicant's submission that, if the Court concludes that it is appropriate to make a costs order then the Order should be for costs on an indemnity basis, the respondent submitted as follows:

(a) the phrase "all costs" must be understood in context, including having regard to s133(2), which provides that court rules in relation to costs are preserved in proceedings under the Act. Accordingly, in the exercise of the power to award costs under s133A, the ordinary principles in relation to the basis and quantum of costs ought apply, unless there is persuasive reason given by an applicant to the contrary;

(b) in the absence of detailed costs records demonstrating the appropriateness of the work done and the costs incurred, an order for "all costs" ought not be considered.

1. As to general considerations in relation to costs, the respondent submitted that:

(a) the Court should conclude that its conduct in the proceeding was reasonable and entirely consistent with its obligations and role as a model litigant and administrator of the Act, including by:

(i) advising the applicant of the additional evidence he would be required to produce in order to substantiate aspects of his claims for exclusion, and thereby assisting the applicant to navigate the regime of the Act;[49]

(ii) bringing an application pursuant to s26 of the Act to enable settlement of a property sale to occur;

(iii) agreeing to the release of the funds attributable to the property interest not disputed at an early stage;[50] and

(iv) making appropriate offers to resolve the proceeding as between the parties.[51]

(b) an award of costs is in the discretion of the Court,[52] save that the discretion must be exercised judicially having regard to established principle and the facts of the case;[53]

(c) the Court may, in the exercise of that discretion, make an order for costs in relation to a particular question in or a particular part of a proceeding;[54]

(d) an "issue" may be any disputed question of fact or law.[55] The items in which the applicant claimed an interest and sought to be excluded from the RO are properly considered separable;[56]

(e) accordingly, if the Court is minded to make a costs order in the applicant's favour, it would be appropriate to discount any award of costs by a proportion, having regard to the mixed outcome obtained by the applicant.

(1) Costs may only be awarded in accordance with this section.

(1A) Nothing in subsection (1) affects the power of the court to award costs in any circumstances not referred to in this section.

(a) a person brings, or appears at, proceedings under this Act before a court in order -

(i) to prevent a forfeiture order or restraining order from being made against property of the person; or

(ii) to have property of the person excluded from a forfeiture order or restraining order; and

(b) the person is successful in those proceedings; and

(c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made -

the court may order the applicant for the forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.

(4) The amount of costs referred to in subsections (2), (3) and (3A) is in the discretion of the court."

1. By section 133A(1A) of the Act, the general power of the Court to award costs in circumstances not referred to in that section, is preserved. I note that this sub-section was inserted into s133A of the Act, in response to the observations of the Victorian Court of Appeal in Ali (No 2)[57] (citing Le[58]), which held that on its proper construction, s133A of the Act "leaves untouched the general costs power" as it applies to types of proceedings not caught by that section.
2. Section 78A(1) of the County Court Act 1958, provides that:

"The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid."

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".[59]
2. A party may be considered to be "successful" in a proceeding "even if it has not succeeded on all heads of claim".[60]
3. In Ali (No 2),[61] Kyrou AJA held that s133A(2) must be read as a whole. His Honour continued:

"... on the section's plain words, each of the requirements in s 133A(2)(a), (b) and (c) mut be satisfied before the costs consequences for which it provides will apply. Paragraphs (a), (b) and (c) are linked by the conjunctive 'and', which makes it clear that the requirements are cumulative. It follows that each of the requirements must be satisfied before it can be said that s 133A(2) exclusively governs the Court's power to award costs. ... ."

1. In Bow Ye,[62] the Victorian Court of Appeal referred to what they described as "clearly the policy behind" s133A of the Act, namely that "persons challenging applications for ... restraining orders, if successful, are not required to pay their own costs".[63] I note, however, that this was an obiter observation by the Court, in the context of considering whether the costs of a successful appeal would be covered by the provisions of s133A of the Act.
2. The most comprehensive consideration of the approach that should be taken to making a costs order under s133A of the Act, appears from two judgments of the New South Wales Court of Appeal, viz, Gwe v Commissioner of the Australian Federal Police[64] and Diez v Director of Public Prosecutions.[65]
3. Both of these cases concerned legislation which was in very similar terms to the wording of s133A of the Act. In both cases, the Court acknowledged that the wording of the relevant section conferred on the Court a broad discretion in relation to making an award of costs in a relevant proceeding, including the power to award "all costs". However, in each case, the Court also concluded that nothing in those sections "creates a presumption or encourages a predisposition towards the grant of indemnity costs as opposed to costs awarded on any other basis".[66]
4. As to any apportionment of costs, in Elite,[67] the Court stated:

"Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory."[68]

"... [w]here a court determines to make an order apportioning costs, it does primarily as 'a matter of impression and evaluation'...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."[69]

Was the applicant "successful in the proceeding"?

1. Having had regard both the written and oral submissions of each party, together with the relevant supporting material, I consider that for the purposes of s133A of the Act, in obtaining the first and the second exclusion orders, the applicant has been "successful in those proceedings".
2. The documents disclose that in his application for an exclusion order dated 27 March 2024:

(a) the relief sought by the applicant was "an order under s22 of the Act excluding from a restraining order a certain interest or interests in property";

(b) the interest in property which was claimed was "A legal and equitable interest as an owner of a two-third[s] share in the [Lara property]";

(c) the grounds on which the application was made was as follows:

(i) the applicant and the accused are registered as joint proprietors of the [Lara property]; and

(ii) the applicant has an equitable interest as to two thirds of the restrained property pursuant to the principles of a resulting or constructive trust; and

(d) included in the application was "documentary evidence of the transaction or transactions .... alleged by the [a]pplicant ... that would support the application, namely the documents exhibited to the affidavits made by RAYMOND BURKHARDT sworn 27 March 2024 and FRANK PATRICK VINCI sworn 27 March 2024 ...".

1. By 22 November 2024, following a review of the relevant documentation, the respondent communicated, inter alia, the following matters to the applicant:

"The Director has provided the following instructions after considering your client's application and material.

The Director accepts the following as your client's interest in the property, to be excluded in favour of your client -

1. A total 2/3rds (66.66%) interest in the Property. This is on the basis of an equitable interest pursuant to what appears to be the common intention that Sandra Burkhardt's interest goes to your client. We note that your client has already received 50% as partial resolution of the total 2/3rds claim.
2. That the mortgage registered over the property prior to settlement is to be taken out of Mr Langford's interest in the property only. The evidence appears to support that the mortgage was Mr Langford's, with his parents as guarantors in the event of a default. This will require adjustment of payout figures when funds are excluded to your client pursuant to point 1. Above ... ."

1. All of the conclusions reached by the Director were based on the affidavit material filed in support of the application. Thus on the face of the relevant documents alone, the respondent had available all of the information on which reliance was placed to formulate the offer of settlement which formed the basis of granting the first and second exclusion orders.
2. By reason of the making of those two exclusion orders, the applicant completely succeeded in relation to the claim as formulated in the Notice of Application filed on 27 March 2024.
3. In relation to the ancillary claims (which were included as part of the applicant's affidavit material), I accept the applicant's submission and find that given the nature of the proceedings and the need to act within tight time constraints, the applicant ought not be penalised for having raised these matters at the outset.
4. The fact that the applicant ultimately compromised these claims by abandoning them in favour of securing an early settlement, does not tell against a conclusion that the applicant was "successful in those proceedings", having had two exclusion orders made in his favour and securing a payment which represented the vast majority of his claim.
5. As to this, I note that in Chen,[70] the Court specifically contemplated that a party could be "successful in a proceeding", even where the party "has not succeeded on all heads of claim".
6. For all of the reasons set out above, I am satisfied that it is appropriate to conclude that the applicant was "successful in those proceedings". That being the case, I have concluded that s133A of the Act governs the making of an order for the applicants costs in this matter.

Should the Court make an award of costs to the applicant?

1. I have given careful consideration to the respondent's submission that even if the Court were to conclude that the applicant was "successful in the proceeding", by reason of the fact that there was no hearing on the merits, the appropriate order is an order that each party bear their own costs. In support of this submission, it was submitted by the respondent that "a compromise has removed the dispute, such that it cannot be said that either side has 'won' or been the 'successful' party". Further, it was submitted that "there has not been a relevant 'event' from which costs ought to follow such that the outcome has been a 'success'". As set above, this submission is based on the observations made in the Lai Qin line of authorities_._
2. However, I note that in Lai Qin, McHugh J specifically acknowledged that although it may be rare, "... in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried ...".[71]
3. This observation was specifically referred to in the decision of Jeruth, where, in summarising the applicable law, Redlich J, stated:[72]

"Costs orders may be made where there has been no hearing on the merits and the action is discontinued due to compromise or events after issue of the proceedings which have rendered it otiose. They may also be ordered where some substantive relief is granted without opposition either because the claim is conceded or because events after the issue of proceedings have rendered further dispute futile.

If a supervening event or compromise so removes or modifies the issues in dispute that it cannot be said that one side has won, the Court should not attempt to assess the merits of the case. This is particularly so where the issues are complex or questions of credit are involved. If it is clear on the undisputed facts that one party would almost certainly have succeeded if the matter had been fully tried, the Court may make an order in favour of that party.

1. I note also the observations of the Court of Appeal in Zhao,[73] where the Court stated:

"We accept as a general principle that where a party litigates for some time and then acts so as to effectively surrender or capitulate to the other, that will usually be a strong ground to award costs against the party who has surrendered or capitulated. But each case will depend on its own facts."

1. As to this issue, I accept the applicant's submission and find that this is a case where substantive relief was granted without opposition, because the claims made by the applicant in relation to his asserted two-third interest in the Lara property and the right to have the mortgage paid out of Mr Burkhardt's share of the Lara property, were conceded by the respondent.
2. In this case, I find that it is possible on the documentation before the Court, to make a judgment about where the liability for costs should lie, notwithstanding the fact that no hearing on the merits took place.

1. As referred to above, consistent with the observations made by the Court of Appeal in Bow Ye about the policy underpinning the words of s133A of the Act, the applicant sought:

(a) an order that the respondent pay the applicant's costs of the proceeding, including reserved costs, on an indemnity basis, to be taxed in default of agreement; alternatively

(b) an order that the respondent pay the applicant's costs of the proceeding, including reserved costs, on a standard basis, to be taxed in default of agreement.

(a) if the Court is minded to make a costs order, the award should be on a standard basis to be taxed in default of agreement;

(b) as to this, the respondent relied upon the provisions of s133(2) of the Act, which provides for the preservation of the usual Court rules in relation to costs, in proceedings under the Act;

(c) given this, and taking into account the fact that the amount of costs to be awarded under s133A "is in the discretion of the court",[74] it was submitted that "the ordinary principles in relation to the basis and quantum of costs ought apply unless there is a persuasive reason given by the applicant to the contrary";

(d) lastly, any award of costs should be "substantially discounted", for the reasons set out at paragraph 13(b) above.

1. I am cognisant of the observations made by the Victorian Court of Appeal in Bow Ye, concerning what was described by that Court as "clearly the policy behind" s133A, namely that a successful applicant for exclusion from a restraining order, ought not be required to pay their own costs.[75] However, as referred to earlier, I note that the issue which I must decide, is not the same issue as that which was being considered by the Court of Appeal on that occasion.
2. As set out above, the most comprehensive consideration of this matter appears from Gwe[76] and Diez.[77] In both cases, the Court concluded that nothing in those sections "creates a presumption or encourages a predisposition towards the grant of indemnity costs as opposed to costs awarded on any other basis".[78]
3. In those circumstances, I accept the submission made by the respondent, that in the absence of evidence which would justify the making of a costs order against the respondent on an indemnity basis, the proper basis of any costs order made in this matter, is on standard basis to be taxed in default of agreement.
4. Lastly, I have given careful consideration to the submission made by the respondent, that any award of costs made to the applicant, should be substantially discounted.
5. None of the factors raised for consideration by the respondent lead me to conclude that any discount should be applied to the award of costs made the to applicant in the proceeding. I have reached this conclusion for the following reasons:

(a) I do not consider the fact that the applicant bore the onus of proof in relation his application to be relevant to a consideration of an award of costs in his favour, especially given that the applicant clearly discharged his onus in relation to the majority of his claim, to the satisfaction of the Director;

(b) an examination of the correspondence between the parties demonstrates that the respondent's claim to have had to provide "assistance" to the applicant to identify evidence necessary for a consideration of the exclusion application, is overstated. The correspondence demonstrates, and I find, that each party worked patiently and co-operatively with the other in relation to the main proceeding, in order to reach a proper outcome. In line with the obligations of a model litigant, the Director identified matters requiring consideration, in relation to which further evidence was needed. In relation to the issue of the applicant's asserted two-third interest in the Lara property, the affidavit was forthcoming from the applicant almost immediately, meaning that all of the evidence on which the Director relied to give instructions to make the first and second exclusion orders, had been filed and served by mid June 2024. This was in the context of the application only having been filed in late March 2024. I also note that the correspondence demonstrates the applicant's patient forbearance in the face of the need for numerous adjournments of the proceeding, inter alia, to allow the Director further time to consider the matter, to which the applicant consented on each occasion;

(c) the argument that a substantial discount ought be applied to any award of costs because the applicant achieved "only a 'mixed outcome' on matters that are properly considered separable," overlooks the general rule that "costs should follow the event" and "... [a]bsent any disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim".[79] The case law also provides that "... [w]here a court determines to make an order apportioning costs, it does primarily as 'a matter of impression and evaluation'... 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".[80] Given the relative importance to the application of the claims in relation to which the applicant was successful, taken against the far smaller, ancillary claims which were ultimately not pursued, I am satisfied, and find, that it is in the interests of justice in this case, that no discount is applied to the award of costs made to the applicant in this proceeding.

1. Given the conclusion that I have reached as to the proper basis upon which an award of costs should be made to the applicant in this proceeding, the applicant has clearly been successful in relation to, and is entitled to, his costs of the costs application, including in relation to his submission that the award of costs is to be made under s133A of the Act.
2. The question for consideration in relation to that matter is the basis on which the order for that portion of the costs, should be made.
3. The correspondence which is relevant to this issue is as follows:

(a) at all relevant times, the applicant asserted his entitlement to have his costs paid by the respondent.[81] By letter dated 28 November 2024, the applicant claimed to be entitled to costs pursuant to s133A of the Act, which it was estimated, at that time, amounted to $50,000. Mr Vinci stated in his letter that the applicant's preference was to agree a figure on costs;[82]

(b) by a letter dated 2 December 2024, the respondent offered to settle the proceeding, on the basis that "each party is to bear their own costs";[83]

(c) by an email dated 5 December 2024, the applicant proposed that the second exclusion order be made and the issue of costs be reserved, so that the substantive aspects of the proceeding could be finalised;[84]

(d) by a letter dated 11 December 2024, the respondent agreed to resolve the substantive claims as proposed by the applicant and to reserve the question of costs. In that letter, the respondent stated that "the Director is not accepting or admitting any liability as to costs including under s133A of the Confiscation Act, and/or any quantum of costs ...";[85]

(e) on 19 December 2024, the second exclusion order was made. In that order, costs were reserved and liberty to apply in relation to costs, was granted to the parties;[86]

(f) by an email dated 7 March 2025, the applicant notified the respondent that he intended to pursue recovery of his costs "in connection with his exclusion order application".[87] The email noted that the respondent's previous position was that each party should bear their own costs. The respondent was advised that the applicant did not agree to such an order. The email continued:

"It appears to us that the pre-conditions in section 133A(2)(a)-(c) of the Confiscation Act 1997 are satisfied and our client would be entitled to an order for costs.

We therefore invite you to reconsider your position on costs before we proceed with an application for costs.

In our letter of 28 November 2024 we indicated that our Client's costs at that stage were approximately $50,000.00 and that it would be our preference to agree on a figure for costs.

That remains our position, save that out Client has now incurred more costs since 28 November 2024. If our client is required to make an application for costs, that will increase his costs even further.

Please provide your response by the 21st of March 2025 ... ."

(g) by a letter dated 12 May 2025, the respondent reiterated the Director's opposition to the applicant obtaining an award of costs in this proceeding, including under s133A of the Act. The respondent also noted the Director's opposition to the quantum claimed in the sum of $50,000. The respondent noted that the Director did not accept that the circumstances of the settlement amounted to the applicant being "successful in those proceedings". The letter concluded:

"... As discussed, any costs are to be on a party-party (or standard) basis, and to be itemised in accordance with the scale of costs. If your client is attempting to engage the Director in some further discussions regarding costs, notwithstanding the Director's instructions to oppose both the application and the quantum...your client has failed to provide a reasonable and specified basis for a proposed quantum that would amount to a genuine attempt to engage the Director in such a way ... ."

(h) on 26 June 2025, Mr Vinci wrote to the Registry of the County Court invoking the liberty to apply which was reserved in the second exclusion order made on 19 December 2024, in order to have the matter relisted for an application for costs to be heard by the Court.

1. Taking into account all of the circumstances of the case, I am satisfied that it was necessary for the applicant to invoke the liberty to apply reserved in relation to costs, in order to ensure that any costs order was made.
2. However, given the content of the correspondence between the parties, I am satisfied that nothing in the respondent's conduct toward the applicant in relation to the question of costs, would justify a costs order in relation to the costs application, other than on a standard basis. While I consider the position adopted by the respondent in opposing any application for costs, to have been untenable, nevertheless, it is clear that the applicant always sought that his costs be awarded on an indemnity basis, which ultimately he has not achieved.
3. In circumstances where he was successful in relation to his costs application, I am satisfied that it is appropriate to order that respondent also pay the applicant's costs of the costs application on a standard basis, to be taxed in default of agreement.

Conclusion as to costs if s133A of the Act does not apply

1. I note that if I am wrong in my conclusion as to the applicability of s133A of the Act to this proceeding, then the case law makes it clear that the usual principles as to costs would apply to this case. In those circumstances, for the avoidance of doubt, I would have made the same order in relation to the costs of the proceeding, based on the same reasoning as is set out above.

1. In those circumstances, I order the respondent to pay the applicant's costs of the proceeding, including reserved costs, on a standard basis, to be taxed in default of agreement.
2. I will hear the parties in relation to the issue of certification (if any) which might be sought for counsels' fees.

[18] Calderbank v Calberbank [1975] 3 All ER 333

[23] Ex 1, p137; note in the affidavit of Mr Vinci sworn on 17 July 2025, the chronology of events notes the date of payment of the monies as 31 December 2025. An examination of the chronology demonstrates that this date should have been noted to be 31 December 2024.

[30] Macquarie Dictionary (online at 21 February 2024) "success".

[31] [1997] HCA 6; (1997) 186 CLR 622 ("Lai Qin") (per McHugh J)

[32] [2004] VSC 319 ("Jeruth")

[34] [2020] VSCA 34 ("Zhao") (per Tate, McLeish and Hargrave JJA)

[36] Chen v Chan [2009] VSCA 233 ("Chen") (per Maxwell P, Redlich JA and Forrest AJA) at paragraph [10], where the Court also observed: "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." As to this matter, the Court referred to Ritter v Godfrey [1922] HCA 62; (1922) 31 CLR 421 ("Ritter") and Oshlack v Richmond River Council (1998) CLR 72 ("Oshlack") at 97-98 (per McHugh J) and at 124 (per Kirby J)

[37] [2007] NSWCA 373 ("Elite") (per Beazley JA; McColl JA and Basten JA)

[39] Email from Mr Vinci to Ms Peel, dated 30 May 2024

[40] Email from Mr Vinci to Ms Peel, dated 22 July 2024

[41] DPP v Le (No 2) [2007] VSCA 57("Le") (per Maxwell P, Chernov and Neave JJA) at paragraph [10]

[42] Bow Ye Investments Pty Ltd (in Liq) v Director of Public Prosecutions (No 2) [2009] VSCA 278 ("Bow Ye") at paragraph [12]

[44] Director of Public Prosecutions v Ali (No 2) (2009) 25 VR 656 ("Ali (No 2)") at 663, paragraphs [36]-[39], per Kyrou AJA, Weinberg JA agreeing

[45] Oshlack, at paragraph [67] (per McHugh J)

[46] Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194; Australian Agriculture and Property Development Corporation v DPP (C'th) [2006] VSC 297 at paragraphs [7]-[9]; Perisher Blue Pty Limited v Chubb Fire Safety Limited [2014] ACTCA 43, at paragraphs [27]-[38]; Re Solutions Hired Pty Ltd (Costs Ruling) [2025] VSC 171, at paragraph [13]

[47] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 ("Latoudis") at 543, 566-568

[49] 1 May 2024 letter from Ms Peel to Mr Vinci at Frank Vinci affidavit, Exhibit FV-1, page 10; 7 May 2024 6:24pm email, Exhibit TP-1, page 21; 31 May 2024 11:46am email, Exhibit TP-1, page 19; 31 May 2024 3:23pm email, Exhibit TP-1, page 18; 24 June 2024 1:40pm letter, Exhibit TP-1, page 25

[50] 1 May 2024 letter from Ms Peel to Mr Vinci at Frank Vinci affidavit, Exhibit FV-1, page 10; 7 May 2024 1:13pm email, exhibit TP-1, page 11; 7 May 2024 Minutes of Consent, Exhibit TP-1, pages 15-16

[51] Letters of 22 November 2024, 2 December 2024 and 11 December 2024

[52] See s78A County Court Act 1958 (Vic); County Court Civil Procedure Rules 2018, r63A.02

[53] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 at 172-173, paragraph [24]

[54] Rule 63A.04 of the County Court Civil Procedure Rules 2018 (Vic)

[55] BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414 at paragraph [33]

[57] Ali (No 2), at paragraphs [12]-[15]; see also Confiscation Amendment Bill Explanatory Memorandum 2010, Clause 30

[61] at 663, at paragraphs [36]-[39], per Kyrou AJA, Weinberg JA agreeing

[64] [2020] NSWCA 350 ("Gwe"), per Bathurst CJ, Bell P and Emmett AJA, at paragraph [12]

[65] [2004] NSWCA 452; (2004) 62 NSWLR 1 ("Diez"), per Santow, Beazley and Tobias JJA, at paragraph [34]

[67] per Beazley JA, McColl JA and Basten JA

[72] at paragraphs [3] and [4], his Honour citing the observations of McHugh J in Lai Qin

[73] at paragraph [12] per Tate, McLeish and Hargrave JJA

[81] Ex 1, p184-185, letter from Mr Vinci to Ms Peel, dated 3 May 2024; p264-265, email from Mr Vinci to Ms Peel, dated 5 December 2024

[82] Ex 1, pp148-149, Letter from Mr Vinci to Ms Peel, dated 28 November 2024

[83] Ex 1, pp150-153, Letter from Ms Peel to Mr Vinci, dated 2 December 2024

[84] Ex 1, p154, email from Mr Vinci to Ms Peel, dated 5 December 2024

[85] Ex 1, pp156-157, letter from Ms Peel to Mr Vinci, dated 11 December 2024

[87] Ex 1, p158, email from Mr Vinci to Ms Peel, dated 7 March 2025