Moore (Scheme Administrator) v Ochkit Pty Ltd [2025] QSC 251 | Case summary

Moore (Scheme Administrator) v Ochkit Pty Ltd [2025] QSC 251 | Case summary | Zoe

[1] On 23 September 2025, I gave an ex tempore decision dismissing an application for declarations brought by Mr and Mrs Houwing (the eighth and ninth respondents), and the companies they represent in these proceedings.
[2] Having dismissed the Houwings' application, counsel for Mr Moore (the applicant) applied for a costs order on the basis that Mr and Mrs Houwing pay costs on the standard basis up to 16 May 2025, and thereafter on the indemnity basis. That costs order is opposed by the Houwings.
[3] In support of the application for standard costs, the applicant relied upon the starting proposition that the normal rule under r 681 of the Uniform Civil Procedures Rules 1999 (Qld) ("UCPR") is for costs to follow the event. But on 16 May 2025, the applicant delivered his response to the Houwings' points of claim. That response document set out the basis upon which it was contended that the relief the Houwings sought was not available to them. The response identified that, as to whether the scheme was a Managed Investment Scheme and whether that scheme required registration in accordance with s 601ED of the Corporations Act 2001 (Cth) ("the Act"), that had been heard and determined by the orders of Applegarth J of 27 November 2020. In respect of that order, there had been no appeal, no application to extend time to appeal nor any other application or proceeding to challenge or set aside or vary those orders. Accordingly, it was submitted, the Houwings should pay costs on the indemnity basis from that date, because by that date they ought to have appreciated the relief they sought was hopeless.
[4] I decline to make an order for indemnity costs for the following reasons.
[5] First, a substantial reason for dismissing the Houwings' application was because the Houwings were seeking advice from the court to answer a hypothetical question as to whether the scheme was a Managed Investment Scheme within the meaning of the Act, rather than seeking to overturn the appointment of the administrator who had been appointed to wind up that scheme. In truth, what became clear at the hearing was that the Houwings were seeking the court's advice in relation to that issue, so that they then could consider whether there might be further steps which they would wish to take. The Houwings did not in fact press for the relief to overturn the order which was made by Applegarth J in November 2020. Accordingly, the declaration which they sought was academic, or at best advisory, and I concluded that this court would not rule upon a hypothetical question.
[6] The fact that the relief which the Houwings were looking for was effectively advisory, was not a matter which was raised by Mr Moore in his response to the Houwings' points of claim in May 2025, or at all. That is not a criticism of Mr Moore, or the way his case was conducted. The relief the Houwings sought in their application was in fact to overturn Applegarth J's order of 27 November 2020, although Mr Houwing at least eschewed that relief at the hearing of the application. It was, in fact, a matter which only became completely clear during oral submissions. As such, the Houwings likely did not appreciate that the relief they sought was actually advisory only.
[7] Second, the Houwings were unlikely to have understood that because what they were seeking was either academic or advisory, and as such were not matters which the court would be prepared to hear and determine. In fact, the Houwings' conduct of the application as self-represented parties was quite sensible and without undue waste of court time and resources. I formed the impression that the Houwings did their level best to attempt to conduct the matter as efficiently as they were able to.
[8] Third, I did not form the conclusion that the declaration which the Houwings sought was brought to prolong the litigation, nor was it in advancement of arguments which were false or known to be false. Having regard to the way in which this matter was conducted, notwithstanding the complete lack of success on their application, the Houwings conducted themselves as best as they could, without unnecessarily wasting excessive amounts of time and resources and that is in my view a weighty consideration against the grant of indemnity costs.[1]
[9] Fourth, and in the same vein, it does not seem to me that the conduct of the proceeding was necessarily characterised by a failure to follow proper procedures or comply with court orders, and in that context the case can be distinguished from that which was referred to me by counsel for Mr Moore, the matter of Hulme v Hulme.[2]
[10] Although the Houwings have also asked me to take into account the fact that they are currently in receipt of the aged pension, and their financial situation is precarious, in the particular circumstances of this case, that is not a weighty factor regarding the award of either indemnity or standard costs.
[11] Finally, the Houwings ask for the court to make an order staying the enforcement of the costs order so that they might reach an agreement with Mr Moore to attend to the payment of the costs without causing further financial hardship. That is more properly a matter for negotiation between the parties, and certainly not one that could be made without an evidentiary basis, and there was none before me.
[12] While I accept that there has been significant delay as a consequence of bringing this part of the proceeding to finality, in part that arose because of the original failure to serve the Houwings properly before the application in November 2024, and the course which was thereafter adopted to deal with the raft of issues which the Houwings then identified. While the difference between the indemnity costs and the standard costs will need to be borne out of the administration, that factor does not warrant an order for indemnity costs.
[13] In the circumstances, I order that the eighth and ninth respondents pay the applicants' costs of the application on the standard basis.

Moore (Scheme Administrator) v Ochkit Pty Ltd

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