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[2026] ACTSC 269
Supreme Court of the ACT
2026-07-30
Ainslie-Wallace AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Mason-Leonarder v Balfran Removals Pty Ltd (No 5) Citation: [2026] ACTSC 269 Hearing Date: On the papers Decision Date: 30 July 2026 Before: Ainslie-Wallace AJ Decision: (1) The Plaintiff is to pay CIT’s costs of and incidental to the application for indemnity costs brought by the Plaintiff and dismissed on 10 June 2026. Such costs to be agreed or assessed. Catchwords: CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Costs – where plaintiff’s application for indemnity costs was dismissed – whether plaintiff should pay other party’s costs of that application – costs should follow the event Cases Cited: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Lewis v Chief Executive, Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196 Mason-Leonarder v Balfran Removals Pty Ltd & Anor (No 2) [2025] ACTSC 363 Mason-Leonarder v Balfran Removals Pty Ltd (No 3) [2026] ACTSC 76 Mason-Leonarder v Balfran Removals Pty Ltd (No 4) [2026] ACTSC 191 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Parties: Dean Mason-Leonarder (Plaintiff) Balfran Removals Pty Ltd (First Defendant) Canberra Institute of Technology (Second Defendant) Representation: Counsel L Edwards (Plaintiff) W Sharwood (Second Defendant) Solicitors United Legal (Plaintiff) ACT Government Solicitor (Second Defendant) File Number: SC 136 of 2024 AINSLIE-WALLACE AJ: Introduction
By an Amended Statement of Claim filed on 1 July 2024, the Plaintiff, Dean Mason-Leonarder, sued the Defendants in negligence for injuries suffered by him while working for the First Defendant (Balfran) at the Second Defendant’s premises (CIT). Balfran filed its Defence on 25 July 2024 and CIT filed its Defence on 29 July 2024.
On 26 August 2024, CIT filed and served on Balfran a Notice Claiming Contribution or Indemnity. On 2 April 2025, Balfran filed and served a Notice Claiming Contribution or Indemnity on CIT.
The matter was heard, commencing on 12 May 2025, and on 14 May 2025, the matter was settled. Judgment and verdict were entered for the Plaintiff against Balfran in the sum of $1,270,237.66, in addition to costs. The principal amount was amended on 15 May 2025 by the consent of the parties to be $1,271,287.73, in addition to costs.
The issue of the contribution of each Defendant to the Plaintiff’s injury and damage remained in issue and, in a decision delivered on 15 August 2025, I determined that contribution to be 50% as to each of them and each Defendant was ordered to contribute 50% of the Plaintiff’s verdict amount and costs: see Mason-Leonarder v Balfran Removals Pty Ltd & Anor (No 2) [2025] ACTSC 363.
A question as to the costs as between Balfran and CIT was the subject of further argument and, on 25 March 2026, costs orders were made: see Mason-Leonarder v Balfran Removals Pty Ltd (No 3) [2026] ACTSC 76.
The Plaintiff then sought an order against CIT for indemnity costs from the date on which the parties held an unsuccessful mediation on 26 November 2024 until the date on which the matter was settled, 15 May 2025.
On 10 June 2026, that application was dismissed: see Mason-Leonarder v Balfran Removals Pty Ltd (No 4) [2026] ACTSC 191.
CIT now seeks an order for costs against the Plaintiff in relation to the failed application for indemnity costs. The parties have agreed that this issue may be determined on the papers. Both CIT and the Plaintiff filed written submissions.
CIT’s submissions
Plaintiff’s submissions
Underlying the Plaintiff’s application for indemnity costs against CIT was the failure of the parties to settle the dispute at a mediation. That the parties mediate the Plaintiff’s claim for damages was a course suggested to both Balfran and CIT by the Plaintiff. The suggestion of mediation was put on the basis that, if the mediation was successful, the issue of damages could be agreed and the matter would then devolve to a dispute between CIT and Balfran as to the contribution of either or both of them towards that settled sum.
As I have said, that mediation was unsuccessful. The Plaintiff did not succeed in his argument that the mediation failed because CIT did not accept his contention that its defence was wrongheaded.
The Plaintiff’s application for indemnity costs based on the failure to mediate was dismissed. Notwithstanding the rejection of that argument, the Plaintiff’s submissions on whether he should bear the costs of the failed application for indemnity costs hark back to the issue of the mediation and argue that, had CIT successfully mediated, the costs of its application for indemnity costs would not have arisen. It was submitted that the failure of CIT to adopt the suggested mediation is relevant to a consideration of these costs when looked at in the whole of the context of the proceedings.
It was argued that, since the Plaintiff has had to bear so much of his costs which were not otherwise comprehended in the agreed order for costs made on settlement of the proceedings, and he must bear for himself his costs which fall outside party and party costs, he ought not also bear the costs of the failed application.
Determination
I repeat here the well-established principles governing the awarding of costs as between parties to litigation.
The awarding of costs is discretionary and, absent any special circumstances, a successful litigant is entitled to recover their costs from the opposing party: see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]. The result must be a fair one having regard to the particular facts and circumstances of the proceedings in the interests of justice: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [8], citing Lewis v Chief Executive, Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196.
While the discretion to be exercised is wide, it must be exercised judicially and being mindful of established principle.
The award of costs is compensatory.
The rejection of the Plaintiff’s application for indemnity costs for the period between the making of the “very sensible” offer by the Plaintiff’s solicitor to mediate and the subsequent settlement means that, in the result, there will be a portion of his incurred costs which are not recoverable from the other party. That fact cannot and, here, does not cause me to exercise my discretion to deny CIT its costs of the Plaintiff’s failed application.
The Plaintiff’s application failed, there has been no reason advanced as to why the “usual rule” for the awarding of costs should not apply, that is, the costs should follow the event and the Plaintiff will be ordered to pay CIT’s costs of and incidental to his failed application for indemnity costs.
Order
I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date:
Mason-Leonarder
Balfran Removals Pty Ltd (No 5)