Hoare v Amberlowe Pty Ltd & Ors [2025] VSC 425

1 On 1 July 2025 the plaintiff, Mr Anthony Hoare ('Anthony'), with the consent of the second defendant, Mr Mathew Hoare ('Mathew'), the fifth defendant, Ms Kim McDonald ('Kim') and their related entities, sought leave to vacate the trial listed to commence on 15 July 2025 of this proceeding ('Distribution Proceeding'), S ECI 2020 03342 ('Separation Proceeding') and S ECI 2021 03781 ('Oppression Proceeding') (collectively 'Proceedings') and to have the Proceedings otherwise dismissed.

2 Anthony also seeks leave to discontinue the Distribution Proceeding against the third and fourth defendants, Mr Kevin Roache and Mr John Nagle by filing notices of discontinuance provided in draft form to my Chambers on 1 July 2025.

3 This is a very old proceeding, settled on the eve of trial together with other related proceedings between the members of the Hoare family and their related entities. Leave is sought to discontinue the Proceedings against the non-family members who are parties to the Distribution Proceeding, Mr Roache and Mr Nagle, as a consequence of the settlement arrived at between the family members and their related entities.

4 Both Mr Nagle and Mr Roache agree to the discontinuance of the proceedings against them. Following an exchange of submissions, the terms of discontinuance of the claim by Anthony against Mr Roache are no longer in dispute.

5 Mr Nagle agrees that leave should be given to Anthony to discontinue the proceeding against him provided that:

(a) Anthony pay Mr Nagle's costs of the Distribution Proceeding on an indemnity basis ('indemnity costs order'); and

(b) Anthony be barred from bringing any of the claims raised in his pleadings in the Distribution Proceeding against Mr Nagle in the future.

6 Following the filing of submissions on behalf of Anthony and Mr Nagle, while Anthony did not express his opposition to an order that he be barred from bringing any of the claims raised in his pleadings in the Distribution Proceeding against Mr Nagle in the future, Anthony does not agree that an indemnity costs order should be a condition of the grant of leave to him to discontinue the Distribution Proceeding against Mr Nagle.

7 In support of his application for indemnity costs Mr Nagle relies upon his primary submissions filed 3 July 2025, his reply submissions filed 14 July 2025 and upon the affidavits of his solicitor, Ms Coventry, dated 3 June 2025 and 3 July 2025.

8 In opposition to an order for indemnity costs Anthony relies on his submissions dated 9 July 2025.

9 Anthony submits that Mr Nagle's application relates to applications for costs which have already been heard and determined to be paid on a standard basis, and that the Court ought not depart from the orders previously made.

10 So far as the length of the Proceedings is concerned, Anthony submits there is no direct evidence that he engaged in conduct which caused loss of time to the Court and to Mr Nagle. Even if the Court considers he has engaged in conduct causing loss of time, that conduct has already been the subject of costs orders.

11 Anthony submits he did not expressly allege Mr Nagle was actually dishonest or that he engaged in dishonest conduct. The highest the matter was put was that Mr Nagle was a party to or connected with 'false' documents and that Mr Nagle engaged in conduct which 'caused a fraud on the power of the Estate', a species of equitable fraud which is not the fraud contemplated by the cases imposing orders for indemnity costs. Anthony submitted that it follows that alleged fraud as the basis for making an indemnity costs order is not engaged.

12 Concerning the Calderbank offer made by Mr Nagle on 2 November 2020 ('Calderbank Offer') that both parties 'walk away' from the proceeding and bear their own costs, Anthony submits that offer was not an offer involving genuine compromise but was a demand to capitulate and therefore it was not unreasonable for Anthony to have rejected it.

13 Section 24(1) of the Supreme Court Act 1986 (Vic) ('Rules') provides that the costs of and incidental to all matters in the Court are at the discretion of the Court which has full power to determine by whom and to what extent the costs are to be paid. Rule 63.31 of the Rules provides that '[e]xcept as provided by these Rules or any order of the Court, including the Costs Court, costs shall be taxed on the standard basis.'

14 In Ugly Tribe Co Pty Ltd v Sikola,[1] the Court listed in a non-exclusive manner circumstances which, when present, will justify a departure from the usual rule that costs are to be taxed on a standard basis and support an order for the payment of costs on an indemnity basis:

(i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.

(ii) The making of an irrelevant allegation of fraud: Thors v Weekes (1989) 92 ALR 131.

(iii) Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991).

(iv) The commencement or continuation of proceedings for an ulterior motive: Ragata Developments Pty Ltd v Westpac Banking Corp (unreported, Federal Court, Davies J, 5 March 1993).

(v) Conduct which amounts to a contempt of court: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.

(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) Branch (No 2) [1993] FCA 70; (1993) 46 IR 301.

(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).

15 Courts have widely recognised that unfounded fraud allegations may justify an indemnity costs order. In NIML Ltd v Man Financial Australia Ltd (No 2), Harper J observed:[2]

Allegations of fraud should only be made on the basis of evidence, worthy of serious consideration, which points to dishonesty in the subject of the allegation. Loose allegations of fraud are a blot on the adversarial system, and may - where, for example, they are made in terrorem - amount to an abuse of process. It is therefore important that those inclined to make such a serious allegation on an inadequate, or no, foundation be discouraged in their purpose by the prospect of having to pay costs as between solicitor and client.

16 Attention was directed in submissions to the following statement by Rose J in Russian Airlines v Leeds:[3]

Where a claimant makes serious allegations of fraud, conspiracy and dishonesty and then abandons those allegations, thereby depriving the defendant of any opportunity to vindicate his reputation, an order for indemnity costs is likely to be the just result, unless some explanation can be given as to why the claimant has decided that the allegations are bound to fail.

17 Concerning the costs consequences of a proceeding abandoned at the last moment, as has occurred in the present case, in Ghougassian v Fairfax Community Newspapers Pty Ltd, Emmett JA observed:[4]

...where an action is commenced or continued in circumstances where the moving party, properly advised, ought to have known that there were no prospects of success, indemnity costs may well be appropriate. In the present circumstances, the abandonment of the proceedings at the last moment, without explanation, exacerbates the matter.

18 In Leichhardt Municipal Council v Green, Santow JA identified the public policy considerations underpinning the imposition of indemnity costs orders where a Calderbank offer has been made but not accepted:[5]

It can be seen from these cases that the practice of Calderbank letters is allowed because it is thought to facilitate the public policy objective of providing an incentive for the disputants to end their litigation as soon as possible. Furthermore, however, it can be seen as also influenced by the related public policy of discouraging wasteful and unreasonable behaviour by litigants.

19 Those public policy considerations are consistent with the overarching obligations imposed upon parties and legal practitioners by the Civil Procedure Act 2010 (Vic) ('CPA') including the obligations in sections 19, 22, 23 and 25 of the CPA.

The procedural history of the claims against Mr Nagle

20 When deciding the claim by Mr Nagle for indemnity costs, it is necessary to consider Anthony's conduct during this proceeding against Mr Nagle as a whole, prior to his application for leave to discontinue.

21 The first affidavit of Ms Coventry provides an accurate and detailed history of the claims made against Mr Nagle and the progress of those claims from the institution of the proceeding. The summary of procedural history below draws heavily on that affidavit.

22 On 1 July 2020, Anthony commenced the Distribution Proceeding against Mr Nagle (and others) by writ and statement of claim ('Original SOC'). Nagle & Co Pty Ltd (ACN 005 266 491) ('Nagle & Co') was not, and is not, a party to the Distribution Proceeding.

23 The Original SOC was 15 pages long. Anthony's claim against Mr Nagle was confined to an alleged breach of directors' duties owed to the first defendant ('Amberlowe'), including pursuant to s 180 of the Corporations Act 2001 (Cth).

24 On 31 August 2020, Mr Nagle filed his defence to the Original SOC.

25 On 2 November 2020, Mr Nagle served his 'walk away' Calderbank offer.

26 By summons dated 22 September 2022 filed in the Separation Proceeding, Anthony sought to consolidate his claims in the Separation Proceeding with those made in the Distribution Proceeding and the Oppression Proceeding by way of a proposed consolidated statement of claim ('Consolidation Application'). On or around 30 November 2022, the plaintiff provided a further amended proposed consolidated statement of claim ('PCSOC'). The PCSOC substantially expanded the proposed claims against Mr Nagle (and others).

27 On 11 May 2023, Anthony filed a proposed amended version of the PCSOC. On 21 July 2023, the Consolidation Application was heard. By order made on 21 July 2023, the Court dismissed Anthony's Consolidation Application with costs.

28 Following the dismissal of the Consolidation Application, Anthony's claim against Mr Nagle (and others) remained as pleaded in the Original SOC. There was no further attempt to join Nagle & Co to the proceeding.

29 By order made on 21 July 2023, the proceedings were referred to judicial mediation which occurred on 14 August 2023 before Associate Justice Efthim. The matter did not resolve.

30 The Distribution Proceeding was listed for directions hearings on 2 February 2024, 12 April 2024, 24 May 2024, 16 August 2024 and 25 October 2024 which were each adjourned largely to afford Anthony, Mathew and Kim time to obtain expert reports. As at 3 June 2025 no expert report had been filed or served on Mr Nagle.

31 By order made on 25 October 2024, the Court listed the Proceedings for further directions on 29 January 2025 ('29 January hearing').

32 On 24 December 2024, Anthony issued Supreme Court proceeding S ECI 2024 07059 by which he sought judicial advice ('Judicial Advice Proceeding'). Mr Nagle was not a party to the Judicial Advice Proceeding, and Mr Nagle's solicitors were not made aware that the Judicial Advice Proceeding had been issued until receipt of an email from my Chambers dated 17 January 2025. That email directed the parties to provide submissions in respect of a number of matters, including:

1. Does Anthony abandon the claims previously made by him in the distribution proceeding and/or the separation proceeding as pleaded prior to the unsuccessful consolidation application?
   1. If so, is there any reason orders should not be made on 29 January 2025 striking out those claims...

...

What is the status of any claims against Mr John Nagle and/or Mr Kevin Roache, or the law practice or accounting practice with which they are associated? Is it anticipated that they or the firms of which they were previously members are necessary parties in a trial of the proceedings and is it anticipate that they will be active parties of any such trial?

33 On 22 January 2025 Mr Nagle filed submissions in response to the 17 January 2025 email which relevantly stated that the claim made against him should be struck out; and if the claim was not struck out, Mr Nagle sought to have the matter proceed to trial as soon as possible after 28 April 2025.

34 On 22 January 2025, Anthony filed submissions in response to the email which relevantly stated that:

in respect of the status of claims against Mr Nagle and Mr Roache, or the legal and accounting practices with which they were associated, there are no claims presently on foot...If the questions raised in the Judicial Advice Proceeding are deferred to a single trial of the Related Proceedings, then the (sic) Mr Nagle and Mr Roache will be necessary defendants...

35 Anthony's position advanced in his submissions dated 22 January 2025 was plainly incorrect: Mr Nagle and Mr Roache were, and remain defendants to the Distribution Proceeding.

36 As deposed to by Ms Coventry in her first affidavit, there was no suggestion in submissions filed on behalf of Anthony at this time that the associated legal or accounting practices would be the subject of any joinder application.

37 The transcript of the 29 January hearing records my observation during argument concerning the claims against Mr Roache and Mr Nagle:

So I'd like to encourage those acting for Anthony to leave out any claims against Mr Roache and Mr Nagle for the next iteration of the pleadings, and if they don't do that, unless there's a proper case against them, then I'll certainly be happy to entertain an application for summary dismissal or summary judgment against them if it's not properly pleaded.

38 On 7 February 2025 the Judicial Advice Proceeding was dismissed. Anthony was granted leave to file and serve an amended statement of claim in the Distribution Proceeding (and the Separation and Oppression Proceedings) by 24 February 2025. Pursuant to the Order made on 7 February 2025 and a variation to that Order made on 10 February 2025, Mr Nagle was not required to file a defence to any amended statement of claim.

39 On 7 February 2025 I fixed all of the Proceedings, including the Distribution Proceeding, for trial to commence on 15 July 2025. The trial estimate was 15 days.

40 On 25 February 2025, Anthony filed an amended statement of claim ('ASOC') in the Distribution Proceeding. Anthony did not seek the joinder of Nagle & Co.

41 Following the 29 January 2025 hearing, on 12 February 2025, I delivered reasons which relevantly state:[6]

I consider the [then ASOC] does not disclose a cause of action by Anthony against Mr Roache or Mr Nagle. It does not do so because it does not allege an agreement between relevant persons that Anthoy's expenses, duties or taxes would be paid by Amberlowe. Even if there were such an agreement alleged, any cause of action for breach of directors' duties by Mr Roache and/or Mr Nagle is Amberlowe's cause of action, not Anthony's. There is no application by Anthony for derivative leave. By making that observation I do not wish to suggest that when amending his pleadings Anthony should seek derivative leave. I invite Anthony to discontinue his claim against Mr Nagle when filing and serving any amended pleadings on or before 24 February 2025.

42 The plaintiff did not accept the invitation to discontinue his claim against Mr Nagle following the 29 January 2025 hearing. Instead, he persisted and later filed a much expanded claim against Mr Nagle.

43 On 6 March 2025, the solicitors for Mr Nagle advised that he objected to the ASOC and intended to seek orders to strike out Anthony's ASOC and that the Distribution Proceeding be dismissed as against him. On the same day, 6 March 2025, my Chambers sent an email advising that Mr Nagle was not required to file any summons in respect of his application to strike out the ASOC and/or for dismissal of the Distribution Proceeding against him but seeking that he and .

44 On 14 March 2025, Mr Nagle filed submissions in support of his application to strike out the ASOC and/or for dismissal of the Distribution Proceeding against him. On 21 March 2025, Anthony filed submissions in reply in respect of Mr Nagle's application to strike out the ASOC and/or for dismissal of the Distribution Proceeding. Anthony's submissions did not refer to any cause of action and/or potential cause of action against Nagle & Co.

45 Mr Nagle's application to strike out the ASOC and/or for dismissal of the Distribution Proceeding was returnable before me on 28 March 2025, together with Anthony's application that I recuse myself.

46 Following the hearing on 28 March 2025 I made an Order on 17 April 2025 which, inter alia, granted Anthony leave to file any further amended statement of claim by 24 April 2025 and provided that Anthony must file any application to add parties to the proceedings by 24 April 2025. On 24 April 2025, I made an Order extending the time by which Anthony was to file any further amended statement of claim to 28 April 2025. No extension of time was sought by Anthony to make any application for the joinder of additional parties to the proceedings (which had been the subject of the Order of 17 April 2025).

47 On 29 April 2025, Anthony filed and served his 171 page further amended and restated statement of claim in the Distribution Proceeding ('FASOC'). The FASOC substantially expanded the allegations made against Mr Nagle to include alleged breaches of fiduciary duties owed to beneficiaries in his capacity as an executor of the Estate of Peter Hoare ('Estate'), alleged breaches of professional duties in connection with his position as an executor of the Estate, alleged breaches of professional duties whilst acting as an accountant for various entities including the Estate and Amberlowe, and alleged conflicts of interest whilst acting as an executor and an accountant, including for Mathew.

48 The FASOC purported to join Nagle & Co (and other parties) to the proceedings without the leave of the Court.

49 On 13 May 2025 the solicitors for Mr Nagle sent a letter to Anthony's solicitors making complaint that the FASOC failed to plead material facts concerning the claims against their client and requesting further and better particulars of paragraphs 40, 44, 50, 61, 63 and 83 of the FASOC, by no later than 23 May 2025.

50 Anthony's solicitors did not respond to the 13 May 2025 letter requesting further and better particulars. On 1 June 2025, Mr Nagle's solicitors sent a follow up email to which no response was received prior to the next hearing on 4 June 2025.

51 At that hearing of 4 June 2025 the Court refused the application by the plaintiff made by summons dated 29 May 2025 to join Nagle & Co as a party to the proceeding.

52 On 16 May 2025 Mr Nagle's solicitors advised Anthony that further discovery would be made by their client. On 20 May 2025 Mr Nagle discovered 15,398 pages of additional documents equating to 22 lever arch folders.

53 On 20 June 2025 Mr Nagle filed and served his defence to the FASOC.

54 On 1 July 2025, 14 days before the date fixed for trial, the solicitors for Mathew gave notice that the claims between Anthony, Mathew, Kim and their related entities had settled and of Anthony's proposal to discontinue the proceeding against Mr Nagle.

55 Anthony's conduct of this proceeding against Mr Nagle from the time the Distribution Proceeding was issued on 1 July 2020 until 1 July 2025 has not been consistent with the overarching obligations owed by him pursuant to ss 19, 22, 23 and 25 of the CPA. His dilatory conduct of the Distribution Proceeding and the various changes he has made to his case have caused and exacerbated the cost of the proceeding to all parties, including to Mr Nagle.

56 The plaintiff persisted with claims against Mr Nagle over a five year period notwithstanding that on 2 November 2020, a 'walk away' Calderbank offer was made by Mr Nagle, notwithstanding the unsuccessful consolidation application in mid-2023 and notwithstanding my invitation on 29 January 2025 that he discontinue the proceeding against Mr Nagle. Despite all of these things Anthony continued and made further revised and expanded claims against Mr Nagle in the FASOC, only to discontinue those claims on the eve of trial.

57 This type of conduct is exactly the type of conduct that warrants the making of an indemnity costs order in favour of Mr Nagle.

58 The Calderbank offer included the following statement:

this dispute rests solely with those two parties (Anthony Hoare and his brother Matthew Hoare) and our client should have never been brought into this litigation.

59 That is an accurate statement. The fact the Hoare family members have now resolved their differences and, having done so, Anthony now seeks leave to discontinue against Mr Nagle bears out the accuracy of that statement.

60 In some cases the rejection of a 'walk away' Calderbank offer will not be unreasonable. This is not such a case. At the time the offer was made the Original SOC did not disclose a cause of action against Mr Nagle of which Anthony was the 'owner'. The claim was for breach of duty against Amberlowe. To make such a claim Anthony first needed to obtain derivative leave. He had not made an application for derivative leave at that time. He did not do so until 29 April 2025. Anthony should have accepted the Calderbank offer. His failure to do so was unreasonable.

61 At the time the Calderbank offer was made, Mr Nagle's costs were approximately $22,000. At the time the offer expired on 17 November 2020, his costs were approximately $24,500. Those costs are now a little shy of $600,000. If the Calderbank offer had been accepted, Mr Nagle would not have been required to incur those further costs.

62 While there has been no determination on the merits of the claims made against Mr Nagle, for five years he has been exposed to various claims by the plaintiff. The allegations which have been made against Mr Nagle involve allegations of serious misconduct.

63 Contrary to the submissions on behalf of Anthony, the FASOC includes express allegations of fraud in the form of the alleged creation of false documents on the part of Mr Nagle. Paragraph 83 of the FASOC alleges that in April and May 2020, Mr Nagle, Mr Roache and Mathew

...contrived to vary the Distribution Scheme, such that the Proposed Anthony Transfers did not occur and to assert that Anthony had always agreed to a transfer of entities within the Corporate Group rather than any assets held by entities within the Corporate Group as his part of the Distribution Scheme ('Proposed Variation').

(a) Nagle, Roache and Mathew purporting to hold Meetings of Estate and Amberlowe to purport to falsely claim that Anthony had agreed to take control of the Corporate entities and return them to himself.

(b) Nagle, Roche and Mathew causing false minutes of meetings of the Estate and Amberlowe which had been created by Mathew to create an impression that Anthony had somehow agreed to vary their Distribution Scheme...

65 Separately the FASOC alleges the making of false representations by Mr Nagle. It alleges that he made representations that he knew to be false and that he did so recklessly with the intention that Anthony should act upon them. I accept the submission on behalf Mr Nagle the such allegations constitute a 'text- book allegation of fraudulent misrepresentation'.

66 The allegations of fraud made by Anthony against Mr Nagle are now abandoned. Having only recently been expanded and reformulated in the FASOC, the serious allegations which have the potential to impact significantly on the professional reputation of Mr Nagle have been abandoned by the plaintiff, without explanation. The making and later abandonment of such serious allegations against a professional adviser is sufficient of itself to warrant an order for indemnity costs.

67 The circumstances here are akin to those discussed by Harper J in NIML. The claims by the plaintiff against Mr Nagle, including allegations that Mr Nagle falsely caused minutes of meetings of the Estate and of Amberlowe to be prepared and made fraudulent misrepresentations, were abandoned at the last minute. The abandonment has occurred without explanation which, as Emmett JA observed in Ghougassian, 'exacerbates the matter.'[7]

68 Not only in this case has there been no explanation for the proposed discontinuance, the proposed discontinuance occurred without notice to Mr Nagle's solicitors. They first learned of any proposal that the claim against their client would be discontinued was when they were copied to an email sent to the Court by the solicitors for Mathew on 1 July 2025. There was no communication or correspondence from the plaintiff's solicitors to those acting for Mr Nagle prior to the receipt of that email which, as is obvious, did not come from the plaintiff's solicitors.

69 For those reasons an order for indemnity costs in favour of Mr Nagle is clearly appropriate in this case. The fact that previous costs orders have been made does not mean that such an order should not now be made. That is particularly the case in circumstances where by reason of the Calderbank offer, a matter obviously not drawn to the attention of the Court when the earlier costs orders were made, it is both necessary and appropriate to revisit earlier costs orders made on a standard basis.

70 I order that Anthony has leave to file a notice of discontinuance of the proceeding against Mr Nagle.

71 I order that Anthony is barred from bringing a claim against Mr Nagle in the future based on any of the claims raised in his pleadings filed in this proceeding against Mr Nagle, whether those claims were contained in the FASOC or in any other earlier pleading or proposed pleading.

72 I order that Anthony pay Mr Nagle's costs of and incidental to the proceeding, including any reserved costs, on an indemnity basis.

Anderson Road Developments Pty Ltd (ACN 126 633 501)

Deakin Administration Pty Ltd (ACN 065 314 623)

Amberlowe Pty Ltd (ACN 007 056 742) (as trustee for the Hoare Family Settlement Trust)

Galaxie Investments Pty Ltd (ACN 005 258 766) (as trustee for the Peter Hoare Family Trust)

[1] [2001] VSC 189 [7].

[2] [2004] VSC 510 [6] ('NIML').

[3] [2018] EWHC 1735 (Ch), [53].

[4] [2015] NSWCA 30 [57] (citations omitted).

[5] [2004] NSWCA 341 [14].

[6] In the matter of Geelong Quarries Pty Ltd [2025] VSC 33 (Second Revision (17 February 2025)) [87].

[7] [2015] NSWCA 30 [57].