//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 926
Supreme Court of NSW
2026-08-04
Kunc J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Emmett v Wildlife Information Rescue and Education Service Limited [2026] NSWSC 926
Hearing dates: On the papers – final written submissions 23 June 2026
Date of orders: 4 August 2026
Decision date: 04 August 2026
Jurisdiction: Equity - Expedition List
Before: Kunc J
Decision: Defendant to pay plaintiff’s costs up to and including 21 April 2025; plaintiff to pay defendant’s costs of costs application; otherwise no order as to costs
Catchwords: COSTS — Party/Party — General rule that costs follow the event — Proceedings overtaken by defendant’s separate proceedings in which Court made no order as to costs — No issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: In the matter of Wildlife Information Rescue and Education Services Limited [2026] NSWSC 145
Category: Costs
Parties: Katrina Emmett (Plaintiff)
Wildlife Information Rescue and Education Service Limited (First Defendant)
Commissioner of Fair Trading NSW (Second Defendant)
Representation: Counsel: M Kalyk (Plaintiff)
A Hochroth SC/Z Bush (First Defendant)
Solicitors: Rubicon Law (Plaintiff)
Colin Biggers & Paisley (First Defendant)
File Number(s): 2024/431987
These proceedings were a dispute between the plaintiff ( Katrina ), and the organisation of which she is a member, the defendant Wildlife Information Rescue and Education Services Limited (). A second defendant (the Commissioner of Fair Trading NSW) had been removed as a party.
The need for a contested hearing to resolve these proceedings fell away when WIRES brought proceedings (1322 proceedings) in which Ms Emmett (on her application) was a defendant and which were resolved by my judgment I**n the matter of Wildlife Information Rescue and Education Services Limited [2026] NSWSC 145 (1322 Judgment). These reasons assume familiarity, and should be read, with the 1322 Judgment. Defined terms in the 1322 Judgment have the same meaning in these reasons.
In March 2026, after delivery of the 1322 Judgment, these proceedings were concluded by the Court granting leave, by consent, to Ms Emmett to file a notice of discontinuance. On that occasion, the Court also noted that the parties were agreed that the only issue remaining for determination was costs. They subsequently agreed that question should be resolved on the papers. That is what occurred. Ms Emmett’s written submissions were prepared by Mr M Kalyk of Counsel. WIRES’ submissions were prepared by Mr A Hochroth of Senior Counsel with Ms Z Bush of Counsel.
WIRES consented to an order that it pay Ms Emmett’s costs, on a party party basis, up to and including 17 April 2025, being the date on which WIRES sent a lengthy email to its members (member email). That email is Annexure A to these reasons. Annexure A04-08-2026-131401 (777 KB, pdf) The member email was an acknowledgement that the board of WIRES recognised that errors had been made in transferring the registration of WIRES from an incorporated association to a company limited by guarantee and setting out how it proposed those errors would be remedied, including approaching this Court in what became the 1322 proceedings. The member email represented, in substance, the vindication of the position for which Ms Emmett had contended in these proceedings.
WIRES propounded two forms of order as to the disposition of costs, of which only the first is relevant. It was that there be no order as to costs after 17 April 2025. WIRES’ essential submission was that its approach to these proceedings was reasonable, whereas it had been unreasonable for Ms Emmett to seek to continue to prosecute these proceedings while the steps set out in the member email were completed. Ms Emmett submitted to the contrary and sought her costs for the entire proceedings.
For the reasons which follow, the Court will make no order as to costs for the period in dispute. However, WIRES will be ordered to pay Ms Emmett’s costs up to and including 21 April 2025. This is because on 22 April 2025 Ms Emmett’s solicitors took a step in the proceedings from which the Court infers that Ms Emmett and her advisors had had an adequate opportunity to consider the member email.
The facts are set out in the 1322 Judgment at [8] to [29]. I will not repeat them here. The most critical of those events for present purposes are:
On 19 September 2024, ASIC approved WIRES’ transfer of registration to a company limited by a guarantee. WIRES’ registration application had included what, with no disrespect, can be described as the controversial Constitution B.
On 20 November 2024, Ms Emmett commenced these proceedings by summons which sought a declaration that the true constitution of WIRES was the 2007 Constitution, and an injunction restraining WIRES from acting by reference to Constitution B.
In early 2025, some interlocutory steps were taken, including the parties to these proceedings and proceedings commenced by a former member of WIRES (Mr Henderson) attending an unsuccessful court-annexed mediation on 13 and 19 March 2025.
As a result of the commencement of these and Mr Henderson’s proceedings, WIRES retained new solicitors.
The member email was sent on 17 April 2025.
On 22 April 2025, Ms Emmett’s solicitors sent to WIRES’ solicitors, in accordance with orders made on 11 April 2024, a letter (22 April 2025 letter) enclosing an amended summons and a supplementary affidavit of Ms Emmett. They also attached a proposed further amended summons which Ms Emmett had previously sought to file. The 22 April 2025 letter proposed to seek an earlier relisting of the matter for further directions “to ensure the progress of the proceedings without any further delay”.
There were then further appearances in the proceedings while WIRES was undertaking the corporate steps in an endeavour to complete the matters which had been foreshadowed in the member email.
At a special general meeting on 1 October 2025, the requisite majority of the members of WIRES approved the New Constitution which was relevantly in similar terms to the 2007 Constitution.
On 5 November 2025, WIRES filed a summons commencing the 1322 proceedings.
On 10 November 2025, Parker J, sitting as the Expedition List Judge, directed that, by 19 November 2025, Ms Emmett was to inform WIRES as to “whether she seeks to be joined as a defendant to, and/or be heard in opposition to, any claims in [the 1322 proceedings], and if so, what claims”.
Ms Emmett, at her request, was joined as a defendant to the 1322 proceedings, which were fixed for hearing before me on 24 February 2026.
On 24 November 2025, Parker J adjourned these proceedings for directions at the same time as the hearing of the 1322 proceedings on 24 February 2026.
The 1322 proceedings were heard on 24 and 25 February 2026. Ms Emmett was the first defendant in those proceedings and took an active role in them through her counsel, including the cross-examination of WIRES’ principal deponent.
On 25 February 2026, at the conclusion of the hearing, I made orders under s 1322(4) of the Act to regularise the procedural irregularities in relation to WIRES’ conversion from an incorporated association to a company limited by guarantee. The parties to the 1322 proceedings (including Ms Emmett) accepted that there should be no order as to the costs of the 1322 proceedings.
As I have noted in [3] above, these proceedings were resolved on 13 March 2026 by the Court, by consent, granting Ms Emmett leave to file a notice of discontinuance, with the costs of these proceedings being the only outstanding issue.
“7. The principles applicable to costs where proceedings have terminated before trial are well-known and need not be recited in detail in circumstances where the dispute is limited to the form of the costs order. In Chapman v Luminis Pty Ltd [2003] FCAFC 162, the Full Federal Court (Beaumont, Sundberg and Hely JJ) summarised them as follows (at [7]:
a. where a proceeding terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201;
b. this does not mean that a Court can never make an order for costs. Often it will be unable to do so, but in other cases an examination of the reasonableness of the conduct of the parties may provide the basis for an order, or a judge may be confident that one party was almost certain to have succeeded if a matter had been fully tried: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 625 (McHugh J);
c. a distinction is to be drawn between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should be bear the costs: ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 171 ALR 227 at 231-232 (Burchett J).
- The principles were similarly se out by the NSW Court of Appeal in: Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 at [25]-[30] (Payne JA, Meagher JA agreeing).
- Whether a party has ‘effectively surrendered’ is not be evaluated by a close comparison of the precise terms of the orders made and the orders sought but by looking to the substance of the outcomes sought and obtained by the applicant: Nadilo v Eagleton [2021] NSWCA 232 at [85]; McMillan Investment Holdings Pty Limited v Mangos (No 3) [2023] NSWSC 1327 at [149].
- An order for costs of the proceedings will, subject to any order to the contrary, include costs of any interlocutory applications which have been reserved or not otherwise dealt with: Uniform Civil Procedure Rules 2005 (NSW) r 42.7(1); El-Wasfi v State of New South Wales; Kassas v State of New South Wales (No 2) [2018] NSWCA 27 at [21].
- Parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in case and it will typically not appropriate to differentiate between issues unless there is a particular issues or group of issues that is clearly dominant or separable from balance of the proceedings: NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 at [24]; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 1106 at [31]-[32].”
The essential difference between the parties’ positions may be shortly stated.
Ms Emmett’s submission was that it remained necessary for her to continue to prosecute these proceedings after the member email. It was not a communication sent to her personally, nor was it a concession in her favour for the purposes of these proceedings. It was not an undertaking to the Court nor was there any undertaking to act in accordance with the 2007 Constitution.
WIRES relied on a distinction drawn in the cases between where a party “after litigating for some time” effectively surrenders to the other, and examples of cases in which a supervening event renders the proceedings futile or moot. Only the former would commonly justify an award of costs to the “successful” party.
WIRES submitted that it was not a party that had effectively surrendered “after litigating for some time”. Instead, it submitted that it sought to resolve the proceedings at the first opportunity, on terms that effectively granted the relief sought (referring to settlement offers that it made) and, importantly, had set out in the member email a series of steps which, WIRES contended, effectively granted the primary relief sought by Ms Emmett and which steps were all subsequently taken.
The Court does not accept that the settlement offers are relevant. The parties were unable to reach agreement and the terms of the offers, contained in proposed deeds, do not lend themselves to a finding that the practical outcome of the dispute (encompassing both these proceedings and the 1322 proceedings) was at least as good as those offers.
However, the member email is of dispositive significance.
The Court does not accept WIRES’ submission that it did not capitulate, although it may be accepted that the parties had not been litigating “for some time”. The member email is, in my respectful opinion, clearly a capitulation, acknowledging the correctness of the fundamental position, at least as to its overall effect, taken by Ms Emmett in these proceedings. That is why it is, with respect, correct that WIRES concedes it should pay Ms Emmett’s costs up to the date of the member email (although, as to this see further [19] below).
However, equally, the Court does not accept that it was reasonable for Ms Emmett to continue to prosecute the proceedings as she did after the member email. That email represented in practical terms the acceptance of Ms Emmett’s position and set out how WIRES proposed to rectify the situation. There is no evidence that, having received the member email, Ms Emmett’s solicitor sought to engage with WIRES’ solicitors about the significance of the email for these proceedings. That should, at least, have been done.
In any event, consistent with her obligations as a litigant to conduct the proceedings in a way which achieved the overriding purpose, in my respectful opinion it was unreasonable to take any further steps pending the working out of the course proposed in the member email. While that course may have taken longer than Ms Emmett would have liked, it was what WIRES proposed to do and did. There could have been no prejudice to Ms Emmett’s position if her solicitors had indicated that she was content to adjourn these proceedings to allow the steps in the member email to be carried out. The unreasonableness in her conduct in continuing the proceedings is why, in the exercise of its discretion, the Court concludes that she is not entitled to her costs of the proceedings after the member email.
There are four further points to be made.
First, in terms of the date up to which WIRES should pay Ms Emmett’s costs, some allowance should be made for a reasonable time within which Ms Emmett and her legal advisors could consider the impact of the member email. As I have recorded in [9] above, the member email was sent on 17 April 2025 and on 22 April 2025 Ms Emmett’s solicitors wrote to WIRES’ solicitor taking steps to progress these proceedings. The Court finds that the period up to and including 21 April 2025 would have been a reasonable period to consider the impact of the member email. Furthermore, if necessary, the Court would infer that by the time Ms Emmett’s solicitors sent the 22 April 2025 letter a decision had been taken not to engage with the member email in the context of these proceedings. Accordingly, WIRES will be ordered to pay Ms Emmett’s costs up to and including 21 April 2025.
Second, Mr Kalyk’s submissions in support of the proposition that it was reasonable for Ms Emmett to continue the proceedings after the member email included detailed criticism of the various corporate processes undertaken by WIRES up to the adoption of the New Constitution on 1 October 2025 and the commencement of the 1322 proceedings. That submission commenced with the assertion that “WIRES was in the meantime acting in a way that was not consistent with the 2007 Constitution in various respects and was attempting to pass a constitution that members would accept”.
There are two reasons why the Court does not consider those criticisms to be relevant to the exercise of its present discretion:
Just as the Court will not be drawn into a hypothetical hearing of the substance of settled proceedings, the scope and nature of the allegations made for Ms Emmett in relation to WIRES’ conduct in the period is not a matter with which, in the exercise of its discretion, the Court should engage in the context of a costs application being determined on the papers. The criticisms invite what would have to be a consideration on the merits and require argument.
As I have recorded, Ms Emmett was a party, on her own application, to the 1322 proceedings. The 1322 judgment notes (at [9]) that “The relevant events were not contentious”. At [29] of the 1322 judgment, I recorded the various steps which WIRES took after the member email to rectify irregularities which had been identified, including that “WIRES acted in accordance with the terms of the 2007 Constitution until the New Constitution was passed by a special majority in October 2025”. The Court declines to make its present decision on a basis inconsistent with that which all the parties, including Ms Emmett, were content for the Court to proceed upon in the 1322 proceedings.
Third, the Court must exercise its discretion as to costs to give effect to the overriding purpose (Civil Procedure Act 2005 (NSW), s 56), being to facilitate the just, quick and cheap resolution of the real issues in the proceedings. While not a sufficient reason in itself, the Court is satisfied that the outcome which it has reached gives effect to that obligation. In its submissions, WIRES invited the Court to clarify what costs Ms Emmett was not entitled to recover pursuant to any costs order in these proceedings. Given the outcome of the present application, it is not necessary for the Court to do so. However, the underlying point is relevant. Any costs order which the Court makes in these proceedings can only relate to the costs of these proceedings. For example, it will not extend to Ms Emmett’s costs of the 1322 proceedings, in relation to which Ms Emmett accepted there should be no order as to costs.
Similarly, while the Court disregards various assertions made in WIRES’ submissions about the solicitor/client costs apparently incurred by Ms Emmett, it is clear from the evidence that after the date of the member email Ms Emmett is likely to have been incurring both costs of and incidental to these proceedings and costs in relation to advice about the various corporate processes being undertaken by WIRES (and which are the subject of the criticism to which I have referred in [20] above).
Ms Emmett was entitled to obtain whatever advice she wanted in relation to those steps. However, there is a very real argument to be had as to the extent to which (if at all) those costs could be said to be costs of and incidental to these proceedings. The invitation made in WIRES’ submissions to which I have referred in [22] above suggests that a dispute about those matters would have been inevitable if the Court had made the costs orders sought by Ms Emmett. In my respectful opinion, the decision to which the Court has come gives effect to the overriding purpose by avoiding what has the potential to be a complex and time consuming dispute before a costs assessor as to how costs incurred by Ms Emmett were to be allocated.
Fourth, there remains the question of the costs of the present application. It has been a discrete argument conducted on the papers. Ms Emmett has failed in the costs application which she has made. WIRES, with a minor exception as to timing (see [19] above), has succeeded in obtaining the primary costs order which it sought. Costs should follow the event in relation to the costs application. Ms Emmett will be ordered to pay WIRES’ costs of the costs dispute.
The Court’s orders are:
Wildlife Information Rescue and Education Service Limited (WIRES) is to pay the plaintiff’s costs of these proceedings up to and including 21 April 2025.
The plaintiff is to pay WIRES’ costs of the argument as to costs conducted on the papers.
Note that the Court otherwise makes no order as to any party’s costs of these proceedings.
**********
Emmett
Wildlife Information Rescue and Education Service Limited
(1993) 44 FCR 194
(1997) 186 CLR 622
(2000) 171 ALR 227
(2018) 97 NSWLR 681