//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] WASC 109
procedural. No order as to costs
Le Miere J refused to make any order for costs following an urgent interlocutory injunction about a threatened call on a bank guarantee. The plaintiff applied urgently but prematurely; the defendants had initiated the dispute by threatening to call the guarantee and failed to give an unequivocal undertaking in time. Because both parties' conduct contributed to urgency and neither was clearly entitled to costs, the court ordered no order as to costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,895 words · generated 17/07/2026
Probuild Constructions sought urgent interlocutory relief to restrain Lightpark Holdings (receivers and managers appointed) and St George Bank from presenting a bank guarantee. The immediate chronology is compact and central to the judgment. On 20 February 2009 the first defendant's solicitors wrote to Probuild threatening to have recourse to (call) an existing bank guarantee unless a substitute guarantee of $1,037,500 without expiry was provided by 27 February (see para 3). On 21 February Probuild's solicitors responded seeking clarification of who would present the guarantee and sought an undertaking that it would not be presented; they asked for that undertaking by close of business on 24 February (paras 4–6). Before the 24th deadline had passed, and after limited communications on the morning of 24 February, Probuild filed an urgent ex parte application that afternoon. Newnes J heard the matter and made an injunction and accepted undertakings restraining presentation of the guarantee (para 9). The substantive dispute later resolved, and what remained before Le Miere J on 26 February was solely who should pay the costs of that interlocutory application. Probuild sought costs against the first defendant only. Both defendants sought costs against Probuild and, further, sought indemnity costs (paras 1–2, 11).
No linked legislation citations have been extracted yet.
Le Miere J concluded that neither side should be awarded costs, and ordered no order as to costs (para 23). The reasons are essentially that Probuild's application was premature and not reasonably necessary at the time it was launched, but that the defendants' initiating conduct and failure to give an unequivocal, temporally sufficient undertaking also made it inappropriate for the defendants to recover costs (paras 15–16, 18–22).
The decision turns on the court's discretionary approach to costs in interlocutory applications, applied to the particular facts and timeline.
Prematurity of the plaintiff's application. Le Miere J found the defendants' 20 February demand was properly read as a threat to act on or after 27 February: the demand gave a clear date for the condition precedent to any call on the guarantee (para 13). Probuild had sought an undertaking by close of business on 24 February and had time to wait to see whether the defendants honoured that request or whether the threatened event would actually occur. Despite that, Probuild filed for injunctive relief earlier on the 24th (paras 14–16). The judge concluded that the plaintiff's conduct was not reasonably necessary in the timing chosen: it was premature to launch the urgent application before the deadline given in the defendants' letter and before the plaintiff's own 24 February deadline had expired (paras 15–16).
Conduct of the defendants. The defendants had initiated the dispute by proposing to call the bank guarantee if a substitute were not provided (para 18). They did not substantively rebut Probuild's contention that they lacked legal entitlement to call the guarantee, and the manner of their undertakings was deficient. The undertaking given on 24 February to refrain until 10 am the next day was time-limited and thus left open the possibility that action could be taken at 10:01 am (para 19). The defendants later provided an undertaking to refrain until 28 February, but that came only on 26 February (para 10). Given that the defendants' demand caused the urgency and that their undertakings were not immediately or sufficiently unequivocal, they were not entitled to costs either (paras 18, 22).
Commercial context. The judge explicitly took the rapid commercial context into account: communications and decisions occurred quickly and parties lacked the luxury of leisurely negotiation, which affected both sides' conduct and the court's exercise of discretion (para 20).
Balancing these elements, the judge concluded that although Probuild's seeking of protection was commercially prudent, that prudence did not justify awarding costs against the defendants when the application was not reasonably necessary in its timing; nor should the defendants recover costs given their initiating conduct and inadequate undertakings (paras 21–22). The practical outcome therefore was a neutral costs order: no order as to costs (para 23).
This judgment does not purport to state a novel principle of law. It applies the settled discretionary principles that govern costs in interlocutory proceedings. The relevant legal framework is the court's general discretion to award costs according to justice, reasonableness and the conduct of the parties; Le Miere J applied that discretion to the specific, tightly timed commercial facts before the court.
Before: The established position is that costs normally follow the event, but the court may decline to order costs or may order costs against the successful party in light of conduct, necessity, prematurity, or other factors.
After: The case stands as a fact-specific application of that discretion in the context of threatened presentation of a bank guarantee. It confirms that:
It is not a precedent that alters the law on costs; it is persuasive authority for cases with very similar fast-moving facts involving demands to call financial securities and narrowly framed undertakings.
Key passage (para 15): "In my view the conduct of the first defendant did not reasonably necessitate the plaintiff commencing the proceedings at the time when they did for the following reasons."
Key passage (para 21): "I have held it was not a matter of reasonable necessity for the plaintiff to bring the application, but as a matter of commercial prudence and extra care when a large sum of money was at issue, it was not an unreasonable thing for them to do... it is a matter which is to be done at their own cost and not to be visited upon the defendants."
Key passage (para 22): "Similarly... their actions in making the unjustified threat on 20 February to present the bank guarantee and then failing to give in terms an unequivocal undertaking that nothing would be done prior to 27 February is such that they ought not to have the costs either."
Key passage (para 20): "These communications were taking place rapidly and in circumstances where neither party had the luxury of being able to set out precisely and comprehensively what the position of each party was at their leisure."
This judgment will be of particular relevance where:
In such circumstances, a court faced with a costs application may conclude that neither party should recover costs if each party's conduct contributed to the urgency and to the filing of the urgent application. The judgment is especially apt where the plaintiff's action is commercially prudent but premature, and the defendant's undertaking is deficient or tardy.
The judgment itself contains no discussion of subsequent treatment by later courts; the transcript before Le Miere J does not cite subsequent authorities or suggest any binding novel legal principle. Therefore one cannot, from the text of this judgment alone, assert how later courts treated it. Its force is that of a reasoned, fact-specific exercise of discretion on costs in interlocutory proceedings. Practitioners and courts will treat it as persuasive authority where the factual constellation is substantially similar.
Indemnity costs threshold. The defendants sought costs on an indemnity basis, which was refused. The judgment does not articulate a detailed test or threshold for indemnity costs in this kind of commercial urgency; practitioners will therefore need to rely on broader authorities for when indemnity costs are appropriate. Le Miere J's refusal was predominantly fact-driven (paras 11, 22).
Exact temporal sufficiency of undertakings. The judge criticised an undertaking that would merely postpone action until 10 am the next day because it left room to act at 10:01 am (para 19). That observation indicates courts may scrutinise not merely the existence but the temporal scope and certainty of undertakings in urgent contexts, but the judgment does not prescribe precise wording or time-limits that are required.
Standards for "reasonable necessity". The judge concluded the application was not reasonably necessary because the threatened action was directed to dates after 27 February and because the plaintiff had itself given the 24 February deadline (paras 15–16). However, what quantum of risk, or what combination of communications, will justify earlier-than-deadline commencement is necessarily fact-specific and remains an open, case-by-case question.
Balancing commercial prudence against prematurity. The judgment finds that commercially prudent steps taken by a plaintiff do not automatically justify costs being awarded (para 21). How other judges will balance commercial caution against strict notions of necessity in different contexts is unresolved.
Role of professional status. The judge accepted that receivers and professional liquidators are not to be assumed to act sharply, but also held them to a high standard in giving clear undertakings (para 22). The precise impact of a party's professional status on costs discretion, beyond general conduct, remains a contextual question.
Conclusion: Probuild v Lightpark is a concise, practical application of the court's costs discretion in the face of a fast-moving commercial dispute over a bank guarantee. Its principal lesson is that timing matters: a plaintiff who applies prematurely may bear its own costs even if its conduct was commercially prudent, and a defendant who creates the urgency but gives inadequate undertakings cannot automatically recover costs. The judgment is fact-specific and therefore most useful as a guide to handling undertakings, timing of urgent applications, and conduct in compressed commercial timelines.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : PROBUILD CONSTRUCTIONS (AUST) PTY LTD -v- LIGHTPARK HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) [2009] WASC 109
BETWEEN : PROBUILD CONSTRUCTIONS (AUST) PTY LTD (ACN 095 250 945)
LIGHTPARK HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 111 485 897)
Practice and procedure - Costs - Who should pay costs of the application - Whether costs should be awarded on an indemnity basis - Turns on own facts
1 LE MIERE J: This matter was listed before me today for the plaintiff's application for the continuation of the injunction granted and undertakings given before Newnes J on 24 February 2009. The substantive matters have been resolved between the parties. The matter that remains outstanding is the question of costs.
2 The plaintiff seeks an order that the first defendant pay the plaintiff's costs of the application. The plaintiff does not seek an order in relation to the second defendant, St George Bank. The first and second defendants seek an order that the plaintiff pay their costs of the application and do so on an indemnity basis.
3 The matters giving rise to this application have occurred recently and in a rapidly unfolding sequence of events. On 20 February 2009, that is, last Friday, Lavan Legal, the solicitors for the first defendant, wrote to the plaintiff referring to the bank guarantee and the fact that it was about to expire. The solicitors wrote, amongst other things:
In light of the above my client requests that you provide a further Bank Guarantee in the amount of $1,037,500 in substitution for the Bank Guarantee by 27 February 2008. This bank guarantee should not have an expiry date.
...
If you do not do this, my client will have recourse to the Bank Guarantee and hold the monies in a separate account pending the expiry of the defects liability period and completion of the obligations under it.
4 On the morning of the following day, that is, Saturday, 21 February 2009, the plaintiff's solicitors replied by way of an email, in which they said, amongst other things, that it was not clear on whose behalf Lavan Legal acted and they sought clarification of who or which company had physical possession of the bank guarantee or would attempt to present it.
5 In a letter of that day which was sent by email the plaintiff's solicitors said, amongst other things, things to the effect that the defendants had no legal entitlement to present the bank guarantee for payment. The plaintiff's solicitors then said:
If your client intends to continue with its wrongful conduct, please provide us with details of the particular defaults and clauses of the Contract in which your client purports to rely for the assertion that it is entitled to present the Bank Guarantee and to make the demand in the last two paragraph of your letter.
6 Further details were then sought in relation to that matter and in the penultimate paragraph the plaintiff's solicitor said:
If by close of business on 24 February 2008 we do not have confirmation that your client will not attempt to present the bank guarantee (whether in their capacity as receivers and managers or purportedly acting on behalf of the principal) our client will commence proceedings for an injunction to prevent the wrongful conduct by your client.
Our client's position remains entirely reserved.
7 On the following Tuesday, 24 February 2009, after some unsuccessful attempts at telephone communication Lavan Legal sent an email to the plaintiff's solicitors which confirmed first that they acted for the receivers and managers of the company Lightpark Holdings Pty Ltd, and on behalf of St George Bank Ltd. They then requested an extension of time until 10 am the following day to respond to the plaintiff's solicitor's demand for an undertaking not to present the bank guarantee. They then said:
On behalf of the Receivers and St George, I undertake not to present the bank guarantee before that time. I further undertake to respond to you substantively by 10 am tomorrow morning. If I do not, or if your client is dissatisfied with my response, then your client will still have adequate time to apply for an injunction.
8 By that time the solicitors for the plaintiff had prepared and filed at the court the documents to initiate this application and to seek the hearing of an urgent ex parte application for an injunction that afternoon. At 1.10 pm the plaintiff's solicitors responded to Lavan Legal by email in which they noted the undertaking given by the defendants, and stated that they had been instructed to proceed with the application for an injunction on an ex parte basis that morning. They then said that the application had been filed and listed for hearing before Newnes J at 3.30 pm that day, and that in light of the defendants' undertaking they were informing the defendants' solicitors of that matter. The plaintiff's solicitors further stated their intention to seek an injunction that afternoon.
9 The parties appeared before Newnes J that afternoon. The defendants gave an undertaking in effect not to present the bank guarantee or otherwise have recourse to, or converting the guarantee until further order. Newnes J further made an order granting an injunction restraining the first defendants, its directors, servants, officers, agents, authorised representatives or otherwise from having recourse to and converting to cash the bank guarantee.
10 This morning, 26 February 2009, the defendants' solicitors wrote to the plaintiff's solicitors stating:
My clients undertake to refrain from presenting the Bank Guarantee prior to 28 February 2009 and accordingly, agree to allow the Bank Guarantee to expire.
11 In those circumstances each side seeks costs from the other and the defendants seek their costs on an indemnity basis. The plaintiff, as I said earlier, seeks costs against the first defendant but not against the second defendant. The plaintiff seeks its costs on the basis that it was the conduct of the first defendant in threatening to take the action which it threatened to take which caused the plaintiff to commence the proceedings and seek the injunction that it did.
12 The conduct of the first defendant which is relied upon is its conduct in threatening in its letter of 20 February 2009 to have recourse to the bank guarantee. That threat was made as part of a request that the plaintiff provide a further bank guarantee in the amount of $1,037,500 in substitution for the bank guarantee by 27 February 2008.
13 In my view the ordinary and proper meaning of that communication was that if the plaintiff did not provide the substitute bank guarantee by 27 February 2008 then the defendants would have recourse to the bank guarantee. That is, the threat was in effect to have recourse to the bank guarantee on or after 27 February 2008.
14 On the following day, 21 February 2009, the plaintiff in effect sought an undertaking from the first defendant that it would not attempt to present the bank guarantee and sought that undertaking by close of business on 24 February 2008. The plaintiff's solicitors also stated that their client's position remained entirely reserved.
15 It was in that context that the plaintiff's solicitors commenced this action and sought the urgent hearing of the injunction hearing. In my view the conduct of the first defendant did not reasonably necessitate the plaintiff commencing the proceedings at the time when they did for the following reasons. First the threat which was the conduct of the defendant which gave rise to the need for the injunction was a threat to take some action if the plaintiff did not provide a substitute guarantee by 27 February. So it was a threat to take action on or after 27 February.
16 Second, the plaintiff's solicitors had sought an undertaking by close of business on 24 February 2008 that the defendants would not in effect present the bank guarantee for payment, and in those circumstances the defendants had in effect been given that time in which to respond. The plaintiff chose not to wait until either of those deadlines arrived but to take action earlier on the 24th. For those reasons, in my view the plaintiff is not entitled and should not have the costs of the application.
17 The defendants say that they should have the costs of the application. The defendants say that the application was premature, that it was made without adequate conferral and that it should not have been brought ex parte. In my view this matter must be looked at in the context of a commercial dispute between the parties in circumstances where a threat to present the bank guarantee was made by the first defendant, that there was but a short time before the bank guarantee was to expire, and the events which then took place unfolded very quickly.
18 It was the defendants in effect who initiated all of these matters by their letter of 20 February 2009, in threatening to present the bank guarantee if a substitute was not provided by the 27th. The plaintiff's solicitors wrote in effect saying there was no legal entitlement or proper basis for the defendants to take that action, that is, to present the bank guarantee for payment. The defendants did not in substance respond to that matter, and by undertaking not to present the bank guarantee and to allow it to expire the defendants have in effect conceded there was no proper basis for them to have done so.
19 It is true, as I have said, that their threat was in effect to do something on or after 27 February 2009. However, there was not prior to 24 February 2009 in express terms an undertaking that nothing would be done until or after 27 February 2009. Such an undertaking was given on 24 February 2009 at 12.44 pm, but by that time the application had already been filed. Furthermore, the undertaking was not to present the bank guarantee until 10 am the following morning. In its terms that undertaking would have left the defendants at liberty to present it at 10.01 am the following morning, and did not provide the plaintiff with an opportunity to see whether or not a further undertaking was given before 10 am and then bring an application at 10 am which would have provided protection against the defendants presenting the bank guarantee.
20 This is an illustration, in my view, of the fact that these communications were taking place rapidly and in circumstances where neither party had the luxury of being able to set out precisely and comprehensively what the position of each party was at their leisure. In the circumstances I do not consider the defendants should have the costs of the application either.
21 I have held it was not a matter of reasonable necessity for the plaintiff to bring the application, but as a matter of commercial prudence and extra care when a large sum of money was at issue, it was not an unreasonable thing for them to do. Having said that, it is a matter which is to be done at their own cost and not to be visited upon the defendants.
22 Similarly, so far as the defendants are concerned, in my view, their actions in making the unjustified threat on 20 February to present the bank guarantee and then failing to give in terms an unequivocal undertaking that nothing would be done prior to 27 February is such that they ought not to have the costs either. In saying that, I accept that the defendants had in effect made their threat in relation to the matters that would take place after 27 February.
23 The defendants were represented by solicitors and the defendants themselves, that is the receiver and manager, are professional liquidators, and it is not to be supposed that they would have engaged in any form of sharp practice or taken any action contrary to what they had said in their correspondence. Nonetheless, the way things unfolded and the terms of the undertaking given eventually on 24 February are such that they should not have the costs of the application either. Accordingly the order that I will make is that there be no order as to costs.
No order as to costs