MIRABELA NICKEL LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) -v- MINING STANDARDS INTERNATIONAL PTY LTD [No 5] [2023] WASC 62 (3 March 2023)

1. In respect of these matters, the defendant says the plaintiffs should pay its costs to be taxed if not agreed, alternatively that the parties bear their own costs.
2. In the alternative, the defendant says the court should, adopting a broad-brush assessment, order the defendant to pay 60% of the plaintiffs' costs of the proceedings.[3]
3. In accepting it was appropriate that an order be made that it pay at least some of the plaintiffs' costs, the defendant reserved its right to contend at any taxation or assessment of the costs that the work done by the plaintiffs was unnecessary, unreasonable, or excessive. In addition, the defendant did not accept the plaintiffs required liberty to apply to make an application for costs against Omni Bridgeway and Balance REV. The defendant said it was not the case that Omni Bridgeway funded or assisted them in these proceedings and that no evidence had been adduced to support this contention.
4. For the reasons that follow, it is my view that:

(a) the defendant should pay 80% of the plaintiffs' costs, to be taxed if not agreed; and

(b) special costs orders should be made to lift the limits of all items of the Costs Determinations, apart from the limits for directions hearing and entry for trial, and to increase the rates of senior counsel by 25%.

1. In respect of the order sought by the plaintiffs against Omni Bridgeway and Balance REV, I accept there is no evidence before the court as to whether either or both of these parties funded the defendant's participation in the proceedings. Given this, I will make an order in the terms set out in the defendant's reply submissions granting the plaintiffs' liberty to apply,[4] which the defendant does not oppose being made.

1. It was not in dispute that, under s 37 of the Supreme Court Act 1935 (WA), the court has a wide discretion in relation to costs. However, this discretion is not unfettered and must be exercised judicially.[5]
2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party.[6] It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs. As was noted by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[7]

What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the [Rules of the Supreme Court], together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part ...

Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. (footnotes omitted)

1. Where a court does not accept all of a successful party's arguments at a trial, this does not, of itself, mean that it is appropriate to deal with costs orders on an issue-by-issue basis.[8] The court's discretion to render an award of costs by undertaking an assessment by reference to the issues that have been won or lost at trial should only be exercised in the clearest of cases.[9] The court's discretion to reduce costs for a successful party is approached as a matter of overall impression, without requiring any higher degree of mathematical precision.[10]
2. The rationale for a court granting costs orders on an issue-by-issue basis was explained by Rofe J in McClure v Medibank Private Ltd (No 2) in the following terms:[11]

One of the underlying rationales behind issues-by-issues costs orders is to provide a 'disciplining effect on the parties and their advisers about the issues they select to run' ... Issues based costs orders are generally appropriate where a discrete or distinct issue has caused additional costs to be incurred or where the overall costs have been increased by the unreasonable raising of an issue on which a successful party failed.

(citations omitted).

1. In that case, her Honour declined to make costs orders on an issue-by-issue basis, noting that:[12]

[U]ndertaking an issue-by-issue costs assessment can be an expensive and protracted exercise. I consider that any benefit from a costs assessment reflective of the parties' success by reference to an issue-by-issue analysis would be far outweighed by the costs and time expended by the parties and the Court in achieving that result.

1. The central and overriding principle is that of doing substantial justice to the parties. In approaching this task, the court is not required to tabulate the 'wins and losses', nor undertake an exercise of assessing the time spent or length of submissions, or reasons devoted to each of the issues.[13]
2. The plaintiffs submitted they were ultimately successful in their primary claim for a declaration as to the validity of the termination of the Agreement, and that, consistent with the general rule, they are entitled to their costs of the proceedings. While they accepted they were not successful on every issue at trial, counsel for the plaintiffs submitted the way in which the proceedings developed meant their primary claim was defensive in nature. On this basis, the plaintiffs submitted they were entitled to canvass all issues which may have been material to this primary claim. Reliance was placed on the fact that, in general, greater latitude is given to a successful defendant compared to a successful plaintiff,[14] although the plaintiffs accepted it was not 'strictly speaking' correct to contend they were the defendants.[15]
3. Counsel for the plaintiffs also submitted that, in this case, all of the issues arose from and were embedded in the same overall factual and legal matrix of the case and that determining costs on an issue-by-issue basis would make the taxation process 'overly complicated'.[16] In any event, the plaintiffs denied the matters they raised (on which they were not successful) added to the costs of the proceedings in any significant and readily discernible way.
4. The defendant rejected this contention. In its submission, while the plaintiffs ultimately succeeded in their appeal, this was only in relation to a narrow issue. The defendant contended that the plaintiffs failed (both at trial and on appeal) on the majority of the issues raised in the case. Counsel for the defendant rejected the plaintiffs' characterisation of their claim as defensive in nature and said this, in itself, did not have the effect of converting the plaintiffs to defendants for the purposes of assessing the appropriate costs orders of the proceeding.
5. The defendant submitted that the plaintiffs failed at trial (and, where relevant, on appeal) on the following matters or issues:[17]

(a) the declaration sought pursuant to cl 9.1(b)(i) of the Agreement (abandoned by the plaintiffs);

(b) the permanent injunction sought to restrain the defendant from pursuing the third and fourth plaintiffs (failed at trial);

(c) the construction of the 14-day period in cl 2.5(a) of the Agreement (failed at trial and on appeal);

(d) the pleaded Effectiveness Assumption (failed at trial and on appeal); and

(e) whether the defendants elected to accept the third and fourth plaintiffs' termination of the Agreement (failed at trial and on appeal).

1. In considering the appropriate order as to costs, I start from the position that the plaintiffs were the successful party at trial, notwithstanding the fact they did not obtain all of the relief they sought. This is evident from the orders made (on appeal) that the Agreement had been terminated by notice dated 22 November 2017. Given this conclusion, the prima facie position is that the plaintiffs are entitled to their costs of the proceedings.
2. In my view, the defendant's proposal that costs be determined on an issue-by-issue basis and allocated between the parties is not practical and would significantly add to the time and complexity of any taxation of costs. It also fails to take into account that many of the factual matters raised by the issues on which the plaintiff did not succeed formed an integral part of the factual substratum of the case.
3. That said, I accept that the issues on which the plaintiffs did not succeed added in a significant and discernible way to the costs of the trial. In particular, the questions as to the date on which the Finance Condition was required to be satisfied, whether the defendant was estopped from the denying the date the Agreement was exchanged was 1 November 2017, and that of election required the court and the parties to focus on the detail of the factual substratum in a manner that would not have been necessary had these issues not been raised. In addition, the legal issues that arose as a consequence of these issues being raised added to the work that was required to be done by the parties, as well as the length of the trial.
4. Taking a broad-brush approach, subject to the following, I consider that the plaintiffs' costs should be reduced by 20% to reflect the fact they were not successful on all of the issues raised at trial.
5. During these proceedings, I reserved costs on two occasions: first on 16 September 2020 in relation to the application that Mr Ford give evidence by video link and second, on 7 October 2020, in relation to the costs of the defendant's application to amend its defence and the costs thrown away by the adjournment of the trial.
6. In relation to the first application, Mr Ford was a partner of PwC who was called, essentially, to prove handwritten notes that he took of a conversation between Mr Milbourne and Mr Tucker. While I accept that it was necessary for the defendant to seek and obtain an order to enable Mr Ford to give evidence by videolink, I consider this should have been dealt with by way of consent orders. Given the time at which the trial occurred (in late 2020), it was not necessary for him to attend in person. In my view, the plaintiffs should pay the defendant's costs of this application. However, I do not these costs should extend to the costs of proving Mr Ford's file notes. In my view, the plaintiffs were entitled to test this evidence and to require Mr Ford to be called.
7. Different considerations apply in relation to the second application. As noted in the reasons I delivered at the time, the application for leave to amend was a 'borderline' decision.[18] In addition, at trial, the defendant failed on those aspects of the defence raised by these amendments.[19] In these circumstances, I consider that the plaintiffs should be entitled to their costs of the application dated 29 September 2020 and any costs thrown away by reason of the adjournment of the trial.
8. Finally, I do not accept that any separate costs order should be make in relation to the plaintiffs' application for a case in reply or the final day of trial. Both of these matters were, in my view, part of the usual conduct of a trial and should not be the subject of any separate costs orders.

1. Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA), the court has the power to make special costs orders.
2. On an application for special costs, the court considers two questions:

(a) Is the maximum amount allowable under the applicable costs determination inadequate, in the sense there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amount?

(b) Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, and/or importance of the matter?

1. Both of these questions are addressed as a matter of impression, rather than matters of detailed evaluation, precision, or science.[20] As Martin CJ noted in Electricity Generation and Retail Corp trading as Synergy v Woodside Energy Ltd, on an application for special costs under the previous legislative regime:[21]

[O]nce an order is made for the taxation of costs, it is not appropriate for the court to usurp the function of the taxing officer. Rather, under s 280(2) of the Act, the function of the court is limited to setting the parameters within which the taxing officer will tax the relevant bill, providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. Because the quantum of costs to be allowed is to be determined by taxation, the powers conferred upon the court by s 280(2) of the Act are to be exercised as matters of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed.

1. The effect of s 141(1) of the Legal Profession Uniform Law Application Act 2022 (WA) is to confine the costs recoverable by a successful party to the limits imposed by the relevant costs determination then in force. As was noted by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2], in referring to the identical provision in the previous Act,[22] this provision is 'protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs'.[23]
2. In considering the first question, it is not sufficient for a party to show it has incurred costs greater than the limit in the relevant costs determination. However, the fact that a party has incurred significantly greater costs in each step of the litigation, when viewed in the context of the unusual difficulty, complexity or importance of the matter, may enable the court to conclude there is a fairly arguable case that each of the items identified is inadequate.[24]
3. In considering whether to exercise its discretion to make special costs orders, the court can take into account whether the complexity relied upon to justify the proposed orders arose in respect of issues on which the party failed at trial.[25]
4. Finally, the discretion to be exercised by the court on an application for special costs must be exercised judicially as the interests of justice in each case require. As was noted by Quinlan CJ in Sino Iron Pty Ltd v Mineralogy Pty Ltd, the interests of justice include 'the need to keep the costs of litigation generally within reasonable bounds'.[26]
5. The parties agreed this was an appropriate matter in which the court should exercise its discretion to make at least some special costs orders. I agree with this submission. In my view, these proceedings can be fairly described as unusually difficult and complex. However, this conclusion does not mean that I consider that the allowances for all items are inadequate.
6. From the draft bill of costs annexed to the affidavit of Mr Belyea filed 12 August 2025, it is apparent that the plaintiffs seek costs of approximately $3 million in respect of these proceedings, which involved a five-day trial. While I accept Mr Belyea's evidence as to the costs incurred by the plaintiffs, this does not mean I consider these costs to be within reasonable bounds.
7. Ultimately, having reviewed the bill of costs, I have concluded that it would be appropriate for the plaintiffs' costs to be assessed without regard to the limits imposed by the Costs Determination subject to the following qualifications. First, I do not consider the allowances for the directions hearings or entry for trial ought be lifted. While I accept the plaintiffs' evidence that costs greater than the allowance in the Costs Determinations were incurred in respect of these items, the court does not lift the limit for this reason alone. In many if not most cases, the limits were exceeded because of the number of practitioners attending or recording time in relation to the item. Second, this conclusion does not mean I have formed any view as to whether the amounts claimed are appropriate and reasonable. The questions as to what allowance should be made in respect of each item and whether the costs incurred are reasonable are matters for the taxing officer.
8. At the hearing, counsel for the plaintiffs confirmed the plaintiffs also sought an order that their costs be taxed without regard to the limits of the hourly and daily rates imposed by Table A of the relevant Costs Determinations for senior counsel and two of the solicitors engaged on the matter.
9. The evidence of Mr Belyea is that Mr Dharmananda SC's rates were significantly higher than the maximum allowed in Table A, as were the hourly rates of each of the solicitors working on this matter. While I accept this evidence, the court does not lift the limit on hourly rates simply because a party has engaged lawyers who charge at a higher rate from the rates provided in Table A.[27] That said, it is not uncommon for rates, particularly for counsel, to be lifted above that allowed in the Costs Determinations. In this matter, taking account of the complexity of the matter and the issues raised, I will allow an uplift of 25% of the rate for Mr Dharmananda SC but not for the solicitors.

1. For these reasons, I consider the appropriate orders as to costs are as follows:

1. The defendant pay 80% of the plaintiffs' costs, including the costs reserved on 7 October 2020, to be taxed if not agreed. 2. The plaintiffs pay the defendant's costs of the application dated 11 September 2020, to be taxed if not agreed. 3. Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA), the costs payable pursuant to Order 1 be taxed:

(a) without regard to the limits imposed in Table B of the Costs Determinations, with the exception of the limits imposed for all directions hearings held in the matter (item 10) and entry for trial (item 18(a)); and
>
> (b) by increasing the maximum allowable hourly and daily rates for senior counsel fixed by Table A of the Costs Determinations by 25%.

1. The plaintiffs have liberty to apply to seek costs orders against Omni Bridgeway Ltd and Balance REV Ltd in respect of the plaintiffs' costs in these proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mirabela Nickel Ltd (in liq) (rec and mngrs aptd) v Mining Standards International Pty Ltd [No 5] [2023] WASC 62 (Primary Decision). I have adopted the same definitions in these reasons as were adopted in the Primary Decision.

[2] Mirabela Nickel Ltd (in liq) (rec and mngrs aptd) v Mining Standards International Pty Ltd [2025] WASCA 82 (Appeal Decision).

[3] Defendant's outline of submissions filed 14 August 2025 [43].

[4] Defendant's outline of submissions in reply filed 10 September 2025 [1], [3].

[5] Frigger v Lean [2012] WASCA 66 [53].

[6] Rules of the Supreme Court 1971 (WA) O 66 r 1(1).

[7] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50] - [52].

[8] State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 [8].

[9] KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359 [8].

[10] Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) [6]; May v Thomas [2014] WASCA 176 (S) [5].

[11] McClure v Medibank Private Ltd (No 2) [2025] FCA 343 [23], citing Boomerang Investments Pty Ltd v Padgett (Costs of Liability Phase) [2021] FCA 385 [20].

[12] McClure v Medibank Private Ltd (No 2) [20].

[13] Inpex Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S) [21].

[14] CH Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for the Steele Investment Trust [2022] WASC 447 (S) [8].

[15] Plaintiffs' outline of submissions filed 12 August 2025 [14].

[16] Plaintiffs' outline of submissions filed 12 August 2025 [8].

[17] Defendant's minute of proposed orders filed 10 July 2025, O (1)(a) - (d)(ii) & 3.

[18] Mirabela Nickel Ltd (in liq) (rec and mngrs aptd) v Mining Standards International Pty Ltd [No 3] [2020] WASC 372 [33].

[19] Primary Reasons [622] - [632].

[20] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [12].

[21] Electricity Generation and Retail Corp trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [4].

[22] Legal Profession Act 2008 (WA) s 280.

[23] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [11].

[24] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [14].

[25] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [20].

[26] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [20].

[27] Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S); The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S).