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[2026] ACTCA 25
procedural. The application to reopen the 23 December 2024 judgment was refused. The stay of enforcement of the first-instance costs order was lifted. The $30,000 security was to be applied in partial...
The appellant could not reopen the appeal judgment because the appeal court had already dealt with the substance of his late-filing argument, even though it had described the issue as apparently not raised before the primary judge. Once further appeal avenues were exhausted, the stay on enforcing the first-instance costs order was lifted. The respondent’s evidence supporting early release of the $30,000 security was incomplete, but the Court was nevertheless satisfied on balance that the appeal costs would exceed that amount. The security was released towards the costs liability, and each side had to pay its own costs of these applications.
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2,347 words · generated 07/10/2026
This decision dealt with two procedural applications following the ACT Court of Appeal’s judgment in Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38. The underlying dispute was a claim by Dr Quach for misleading and deceptive conduct. The first-instance court dismissed the claim and ordered him to pay ATM Residential’s costs: [2]. His appeal was unsuccessful, with judgment delivered on 23 December 2024: [1].
3 cited instruments linked from this judgment.
Two matters remained after that appeal. First, Dr Quach wanted the Court of Appeal to reopen its judgment to correct a statement in [45] of Quach (No 2). That paragraph said the objection that ATM Residential’s dismissal application was out of time “was not a matter that appears to have been raised before the primary judge”. Dr Quach said he had raised it. Second, ATM Residential sought to lift the stay on enforcement of the first-instance costs order and have the $30,000 security for appeal costs paid to it before the costs were assessed: [6], [8]-[10].
The background to the security and stay mattered. On 15 February 2023, enforcement of the first-instance costs order was stayed, but assessment of the costs and entry of judgment following that process were expressly excluded from the stay: [3]. McWilliam J explained that the stay was intended to prevent enforcement while the appeal might alter the underlying costs liability, not to prevent the parties from assessing costs: [4]. The next day, the appellant paid $30,000 into court as security for costs of the appeal: [5].
After the High Court refused leave to appeal on 8 May 2025, the parties brought these applications before a single judge of the Court of Appeal: [7]-[10]. The Court refused to reopen its previous judgment, lifted the stay, directed that the security be applied in partial discharge of the appeal costs liability, and ordered each party to bear its own costs of the applications: [33].
The reopening application failed because the Court did not consider that the asserted factual error affected the reasoning or outcome of the appeal judgment. The transcript showed that Dr Quach had raised the late-filing point before the primary judge. McWilliam J accepted that fact: [13]-[14]. But the Court of Appeal in Quach (No 2) had gone on to address the substance of the objection, notwithstanding the uncertainty about whether it had been raised below. It decided that the late filing caused an irregularity, not that the respondent’s application was incompetent: [16(a)].
The governing concern was finality. McWilliam J referred to Wentworth v Woollahra Municipal Council and Autodesk Inc v Dyason (No 2), stating that reopening after judgment is exercised with great caution: [16(b)]. The judgment explains that the exceptional jurisdiction may be enlivened where the court apparently proceeded on a misapprehension of fact or law, but not to re-agitate an argument already considered or to give a litigant another opportunity to present a case more effectively. The quoted passage from Autodesk also requires that the misapprehension not be attributable solely to the applicant’s neglect or default: [16(b)].
Here, the Court did not find that the appeal judgment had proceeded on a material misapprehension. The appeal judgment had dealt with the actual objection. Once that had happened, whether the objection had been raised before the primary judge did not change the basis on which the appeal was decided: [16(a), (b), (d)]. The Court also noted that the High Court had refused leave to appeal on the same issue, and that the appellant had not established that the relevant order failed to reflect the Court of Appeal’s intention under r 1613(4)(d): [16(c), (d)]. The application to reopen was therefore refused: [17].
The stay was lifted because its purpose had passed. The appellant’s appeal avenues were exhausted and the application to reopen had been refused. McWilliam J found no remaining basis to restrain enforcement of the first-instance costs order: [18]. That did not prevent the costs from being assessed. The original orders had left assessment available, and the judgment expressly confirmed that assessment remained possible even if the security was released: [4], [28].
The security question involved a separate exercise of discretion. The Court accepted that security may sometimes be paid to a successful party before costs are agreed or assessed, but emphasised that the answer depends on the evidence and circumstances of the particular case: [19]-[21]. The respondent bore the onus of showing that early release was justified: [22].
There were substantial shortcomings in ATM Residential’s application. The respondent did not seek to have the Court fix the costs, despite that option being canvassed and an adjournment being allowed to address it. McWilliam J described fixing costs first as the preferred course, referring to Dunstan v Higham (No 3): [23]. The supporting affidavit gave summary figures but omitted itemised schedules referred to in the invoices. That prevented even a preliminary assessment of the costs and also meant the appellant could not properly understand the claimed liability: [24]-[25]. The judgment further criticised the absence of an undertaking to repay any amount later found to have been overpaid, with interest. The respondent’s position would instead have left the appellant to bring fresh proceedings to recover an overpayment: [26].
Despite those problems, the Court ordered release. The costs figures were affirmed by a solicitor with 20 years’ experience in commercial litigation and costs assessments. Disbursements alone exceeded the security, and professional costs were approximately $70,000. Taking account of the one-day appeal and the Court’s experience, McWilliam J considered it unlikely that an assessment would reduce the costs to less than $30,000. Even a two-thirds reduction would leave the costs above the security amount: [30]. The Court was therefore satisfied, on fine balance, that the amount ultimately payable would exceed the security: [31].
The Court nevertheless took the defects in the application into account when dealing with its costs. Because the appellant had not had a meaningful opportunity to scrutinise the evidence and respond, each party was ordered to bear its own costs of the applications: [32]-[33(4)].
The judgment does not purport to establish a new general test for reopening judgments. It applies established finality principles drawn from Wentworth and Autodesk: reopening is exceptional, and the power is not a route for a second attempt at arguments already considered. The particular application failed because the appeal judgment had dealt with the substance of the late-filing objection, leaving no material factual misapprehension to correct: [16].
On security for costs, the judgment confirms the discretionary and fact-sensitive nature of an application for release before assessment. It does not prescribe a fixed evidentiary formula or make an undertaking to repay an absolute precondition. Instead, it identifies considerations that may matter: the amount of costs incurred, the proceeding’s nature, the security amount, the parties and available ways to minimise risks: [21]. The respondent’s missing schedules and absent undertaking weighed against its application, but the other evidence persuaded the Court on balance to release the money: [22]-[31].
The decision also clarifies the intended operation of the earlier stay in this particular proceeding. Assessment of costs was not stayed; enforcement was. The parties remained able to pursue assessment, although enforcement was restrained pending the appeal: [3]-[4]. After the appeal process concluded, the stay was lifted: [18]. This is an explanation of the orders in this case, rather than a general rule that all costs stays operate in the same way.
The reasons distinguish earlier exercises of discretion relied on by the respondent. Moon v Whitehead (No 2) involved only $10,000 security, while Jin Lian Group Pty Ltd (in Liq) v ACapital Finance Pty Ltd (No 2) involved an indemnity costs order. McWilliam J noted that both decisions expressly turned on their evidence and treated their different features as reasons to assess the present application on its own circumstances: [20]-[21]. The judgment therefore cautions against treating early release as automatic merely because a party has succeeded.
At [16], McWilliam J stated: “There is a public interest in the finality of litigation and the jurisdiction to reopen following judgment is to be exercised with great caution.” In plain English, a concluded case is not ordinarily reopened just because a party remains dissatisfied with how an issue was described or decided. The judgment connects that restraint with the requirement for a material misapprehension, not simply a renewed disagreement with the earlier reasoning.
At [16], the Court also reproduced the Autodesk principle that reopening is not “a backdoor method by which unsuccessful litigants can seek to re-argue their cases”. This was a quotation from Mason CJ’s reasons in Autodesk, used by McWilliam J to explain the limits of the jurisdiction. In this case, the objection had already been considered on its substance, so reopening would not correct a material error in the appeal court’s reasoning.
At [21], the Court listed matters that “may include the quantum of costs incurred, the nature of the proceeding, the amount of security held, the nature of the parties and any measures” to minimise risks from early recourse to security. In plain English, the Court looks at the practical setting, not only whether the applicant has won. The list is expressed as potentially relevant considerations, not as a closed checklist.
At [22], the Court said: “The onus was on the respondent to establish that the discretion should be exercised.” This identifies who had to support the request for early release. The respondent’s application had evidentiary shortcomings, including the absent schedules: [24]. The judgment’s eventual decision turned on the whole evidentiary picture, not on a rule that summary figures are always enough.
At [26], McWilliam J criticised the absence of an undertaking to repay any overpayment, including interest, if later assessment reduced the costs below the released amount. The concern was practical: without an undertaking, the appellant might have to start a new proceeding to recover money to which the respondent was not ultimately entitled. The Court considered that approach unsatisfactory and contrary to the objectives in s 5A(4) of the Court Procedures Act 2004 (ACT).
The reopening analysis is relevant where a party asks an appellate court to revisit a final judgment because of an asserted factual or legal misapprehension. The important features here were that the judgment had addressed the substance of the argument, the asserted factual correction did not affect that reasoning, and the applicant sought to raise the same issue after the appeal and a refused application for High Court leave: [6]-[7], [16]. The decision does not suggest that every alleged factual error is immaterial. Its reasoning turns on the fact that the appeal court had already considered the relevant objection.
The security analysis is relevant where costs entitlement has been established, but the amount remains unassessed, and the party holding the benefit of security seeks early payment. The case involved a relatively modest security amount compared with the costs figures advanced, a one-day appeal, missing itemised schedules, no repayment undertaking and a costs estimate supported by an experienced solicitor: [24]-[30]. Those combined circumstances led to release, but the Court emphasised that the discretion depends on the case-specific evidence: [21].
The decision may also be relevant where an enforcement stay distinguishes assessment from enforcement. Here, the stay expressly allowed the costs to be assessed and a judgment entered at the end of that process, while restraining the next step of enforcement during the appeal: [3]-[4]. The reasons are particularly useful for understanding what the original order was intended to do in this litigation.
The supplied judgment contains no account of later judicial treatment of Quach (No 3), and the decision date stated in the supplied text is 19 August 2026. No later cases applying, distinguishing or criticising this decision can therefore be identified from the materials provided.
The judgment itself discusses the authorities it relied on. It applies the finality principles in Wentworth and Autodesk to the reopening application: [16]. It considers Moon and Jin Lian Group as examples of early release of security, while noting that the evidence and circumstances in those cases differed: [19]-[21]. It refers to Dunstan as supporting the preferred course of fixing costs before early release: [23], and to Summer Hill as an example where an undertaking to repay was given: [26]. These are the authorities’ treatment within this decision, not evidence of how later courts treated Quach (No 3).
The High Court’s refusal of leave to appeal from Quach (No 2) is part of the procedural history: [7]. The reasons do not treat that refusal as a High Court endorsement of the reasoning in Quach (No 2) or as a determination of the merits by the High Court.
The judgment leaves the application of its security factors open to case-by-case assessment. It does not set a minimum evidentiary standard for costs figures, prescribe when itemised schedules must be disclosed, or make repayment undertakings mandatory. Rather, it identifies missing schedules and the absence of an undertaking as concerns in this application, while still finding release justified on the evidence as a whole: [22]-[31].
The reasons also do not determine how an eventual assessment would proceed or what the final total of appeal costs would be. The Court predicted that the costs would exceed the security, but the costs had not yet been assessed: [19], [30]-[31]. It expressly recognised that assessment remained available even after release: [28].
A further point left unclear in the evidence was whether the appellant could direct how the security was applied between costs and interest, and whether the respondent intended to pursue costs beyond the security: [27]-[28]. The Court noted these questions but did not resolve them in the orders. Its operative direction was limited to applying the $30,000 in partial discharge of the appellant’s costs liability on appeal: [33(3)].
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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 COURT OF APPEAL
Case Title: Quach v ATM Residential Pty Ltd (No 3) Citation: [2026] ACTCA 25 Hearing Date: 16 May 2025 Submissions last 28 July 2025 received: Decision Date: 19 August 2026 Before: McWilliam J Decision: (1) The application to re-open the proceeding the subject of judgment on 23 December 2024 is refused. (2) The stay of enforcement of Order 2 of the orders made on 19 August 2022 in SC 40 of 2022 is lifted. (3) Pursuant to r 1906(2) of the Court Procedures Rules 2006 (ACT), the $30,000 paid into court by the appellant pursuant to the order of the court made on 16 February 2023 is to be applied in partial discharge of the appellant’s costs liability on appeal. (4) The parties are each to pay their own costs of the applications. Catchwords: COURTS – PRACTICE AND PROCEDURE – Judgments and Orders – power to re-open after judgment – circumstances in which power may be exercised – release of security for costs – where costs the subject of security yet to be agreed, assessed or fixed – whether it has been established that the costs apparently incurred exceed the amount of security – security released Legislation Cited: Court Procedures Act 2004 (ACT), s 5A(4) Court Procedures Rules 2006 (ACT), rr 1613(4)(d), 1906(2) Supreme Court Act 1933 (ACT), ss 37J(1)(k), 37O Cases Cited: Autodesk Inc v Dyason [No 2] [1993] HCA 6; 176 CLR 300 Dunstan v Higham (No 3) [2020] ACTCA 50 Jin Lian Group Pty Ltd (in Liq) v ACapital Finance Pty Ltd (No 2) [2021] NSWSC 1202 Moon v Whitehead (No 2) [2015] ACTCA 41 Quach v ATM Residential Pty [2023] ACTCA 9 Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 Quach v ATM Residential Pty Ltd [2022] ACTSC 210 Quach v ATM Residential Pty Ltd trading as McGrath North Canberra [2025] HCADisp 89 Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211 Wentworth v Woollahra Municipal Council [1982] HCA 41; 149 CLR 672
Parties: Dr Michael Van Thanh Quach (Appellant) ATM Residential Pty Ltd trading as McGrath North Canberra (Respondent) Representation: Counsel Self-represented (Appellant) J Moffett (Respondent) Solicitors Self-represented (Appellant) Thomson Geer (Respondent) File Number: ACTCA 42 of 2022 Decision Under Appeal: Court: ACT Supreme Court Before: McCallum CJ Date of Decision: 9 August 2022 Case Title: Quach v ATM Residential Pty Ltd Citation: [2022] ACTSC 210 Court File Number: SC 40 of 2022 McWILLIAM J: Proceedings giving rise to competing procedural applications
The parties in this proceeding have previously litigated an appeal before the Court of Appeal, with judgment delivered on 23 December 2024: Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 (Quach (No 2)).
That appeal was from a judgment which dismissed a claim for misleading and deceptive conduct brought by the appellant (the plaintiff at first instance) and ordered him to pay the respondent’s costs: Quach v ATM Residential Pty Ltd [2022] ACTSC 210.
While the appeal was pending, on 15 February 2023, I stayed the enforcement of the costs order made at first instance. The terms of the order were: Pursuant to rule 5301(3) of the Court Procedures Rules 2006 (ACT), any enforcement of Order 2 of the Orders made by McCallum CJ on 19 August 2022 is stayed save as to the following exclusions: (a) Any assessment of the costs the subject of the Order; and (b) Any entry of judgment at the conclusion of that process.
The wording of those orders appears to have subsequently created confusion. All that the orders were intended to encapsulate was the possibility that any assessment by a registrar might be appealed and may result in a judgment of the court. The parties were not prevented from pursuing their legal rights in having the costs assessed to determine the quantum of the entitlement to costs; they were merely restrained from taking the next step of enforcing those costs while an appeal was pending which may have altered the underlying costs liability.
In addition, security for costs was ordered the following day, on 16 February 2023, in respect of that appeal: Quach v ATM Residential Pty [2023] ACTCA 9. The appellant has paid $30,000 into court.
The appellant sought leave to appeal Quach (No 2). Among the complaints made to the High Court was that paragraph [45] of Quach (No 2) was factually incorrect. That paragraph of the judgment was in the following terms: The argument that the application was incompetent because it was out of time was not a matter that appears to have been raised before the primary judge. However, the respondent did not object to this Court dealing with the argument on appeal.
The High Court of Australia refused leave to appeal on 8 May 2025: Quach v ATM Residential Pty Ltd trading as McGrath North Canberra [2025] HCADisp 89. Applications following appeal being determined and avenues of appeal exhausted
Subsequent to the High Court’s order being made, the parties to the appeal have each pursued applications of a procedural nature before this Court, constituted by a single judge, pursuant to s 37J(1)(k) of the Supreme Court Act 1933 (ACT).
The appellant made an oral application seeking leave to re-open Quach (No 2) because he again wanted to seek to correct what he said was a factual error in [45] of Quach (No 2).
The respondent’s application was for two separate orders: (a) The first was an order seeking to set aside the orders of 15 February 2023 but is more properly understood as seeking that the stay of the enforcement of the costs order at first instance be lifted. (b) The second was to have $30,000 paid into court by the appellant as security for costs in the appeal paid out to it in circumstances where the costs of the appeal have yet to be assessed.
The appellant’s application – reasons why leave to re-open is refused
The appellant’s concern related to the application that the respondent filed, seeking that the proceeding be dismissed as against it. This was the application upon which the respondent succeeded, which then generated the appeal.
The respondent’s application for dismissal was foreshadowed at a directions hearing after the Originating Claim and Statement of Claim had been filed: Quach (No 2) at [46]- [47]. The registrar directed that any application be filed by 13 July 2022. However, the respondent did not file the application until after that date, 19 July 2022: Quach (No 2) at [49].
The transcript of the hearing revealed that the appellant raised the issue of the late filing before the primary judge and argued that the application was incompetent because it was filed out of time. However, the asserted incompetency of the respondent’s application did not feature in the reasons at first instance. This is what led Refshauge AJ in Quach (No 2) at [45] to state that the issue “was not a matter that appears to have been raised before the primary judge”.
The appellant on this application to re-open wanted it to be made clear that he did raise that matter before the primary judge. From a review of the transcript, which forms part of the court record, that may be accepted.
The appellant argued that the court had inherent jurisdiction to re-open the proceeding after judgment, relying in part on the broad powers set forth in s 37O of the Supreme Court Act. These include giving any order it considers appropriate: s 37O(1)(b) of the Supreme Court Act.
However, the re-opening of the proceeding after judgment in the form of Quach (No 2) was not available to the appellant for a number of reasons: (a) Final judgment has been delivered, with final orders entered. The judgment of the Court of Appeal squarely addressed the issue of the consequences of filing an application after the time directed by a registrar at [52]-[55]. That is, the possibility that the matter had not been raised below was put to one side and the substance of the appellant’s complaint was considered on the appeal. The outcome of that consideration was that the respondent’s application produced an irregularity, not a nullity. That is, the application was not incompetent. The appellant’s argument was thus rejected. (b) There is a public interest in the finality of litigation and the jurisdiction to reopen following judgment is to be exercised with great caution: Wentworth v Woollahra Municipal Council [1982] HCA 41; 149 CLR 672 at 684; Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 302. Putting to one side whether the jurisdiction may be exercised before or after an order has been entered, in Autodesk, Mason CJ stated at 302-3 that the principle of finality in litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as of the facts or the law. However, his Honour went on to state: …the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge in order to enliven the exercise of the jurisdiction is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. Here, the judgment of the Court of Appeal did not proceed on a misapprehension of the facts. Refshauge AJ averred to the argument apparently not being raised (because it was not addressed in the primary judge’s reasons) but then dealt with the argument. The criteria for the enlivening of any inherent jurisdiction of the kind described in Autodesk was not met. (c) An application for leave to appeal to the High Court re-agitating the same issue has been declined. (d) There is a further procedural rule which enables an order to be set aside if it does not reflect the court’s intention at the time the order was made: r 1613(4)(d) of the Court Procedures Rules 2006 (ACT). However, the appellant did not establish that the order made did not reflect the Court of Appeal’s true intention. The factual uncertainty was resolved in the appellant’s favour by the Court of Appeal dealing with the argument. That rendered any misapprehension as to what did or did not occur in the court below immaterial.
The respondent’s application – the stay will be lifted and the security for costs will be released
The appellant having exhausted his appeal rights and his application to re-open having been refused, there is no basis to continue the stay of enforcement of the costs order (made on 19 August 2022), and an order will be made lifting the stay.
As to the issue of whether to release the security for costs prior to assessment, that is a matter of discretion. The entitlement to costs has been established, but the quantum of those costs is yet to be determined. There are cases where the court has ordered that money paid into court as security for costs be paid out to the successful party before the amount of costs has been agreed or assessed. The respondent relied upon Moon v Whitehead (No 2) [2015] ACTCA 41 at [16]-[17], and Jin Lian Group Pty Ltd (in Liq) v ACapital Finance Pty Ltd (No 2) [2021] NSWSC 1202 at [74].
Each of those exercises of discretion expressly turned upon the evidence that was put before the court. On the first of those authorities, the amount of security paid into court was only $10,000. On the second of those authorities, an order for indemnity costs was made.
Those distinguishing features are noted to explain that whether it is appropriate to order a release of security prior to assessment will be governed by the circumstances of the case in which the release is sought. This may include the quantum of costs incurred, the nature of the proceeding, the amount of security held, the nature of the parties and any measures the party with the benefit of security is able to put in place to minimise the risks associated with their early recourse to security.
The onus was on the respondent to establish that the discretion should be exercised. Here, the respondent’s position in simply approaching the court for release of the security before assessment was troubling in a number of respects.
First, the respondent was not in a position to seek that the court first fix the costs so as to remove any uncertainty about the quantum, despite that course being expressly canvassed with the respondent during the hearing and the court adjourning to enable the respondent to address the issue. This would have been the preferred course, with the benefits explained in cases such as Dunstan v Higham (No 3) [2020] ACTCA 50 at [59].
Second, the affidavit evidence in support of the application contained only bare figures of the “professional costs for acting in this matter”, without the schedules of itemised entries referred to in each invoice as being attached, thereby preventing the court from making even a preliminary assessment of those costs to have the confidence necessary to make the order sought. The lack of those schedules was also what contributed to the respondent declining to apply to fix their costs of the appeal.
Third, that forensic decision also prevented the appellant from understanding the basis for the costs liability incurred. There was no evidence that the respondent corresponded separately with the appellant about the quantum of the liability now propounded or had provided the schedules to him at an earlier stage. At the very least, disclosing the itemised schedules (even in a form where parts were redacted for legal privilege) would have enabled the appellant to properly form a view as to whether to oppose the respondent’s application for early discharge of security.
Orders
I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate: Date:
Quach
ATM Residential Pty Ltd (No 3)
The application to reopen the 23 December 2024 judgment was refused. The stay of enforcement of the first-instance costs order was lifted. The $30,000 security was to be applied in partial discharge of the appellant’s appeal costs liability, and each party was to bear its own costs of the applications: [33].
For those reasons, the application to re-open is refused.
Fourth, the respondent did not proffer any undertaking to the court to repay any moneys that were overpaid in the event that any subsequent costs assessment ultimately reduced the liability below the security paid, such as was given in Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211 at [31]. Instead, the respondent submitted that it would be for the appellant to seek restitution through instituting fresh proceedings. The invitation to conduct further litigation rather than simply agreeing – as the price of the early release – to repay any money to which it was later found not to have an entitlement (plus interest on any amount overpaid), was unsatisfactory. It runs contrary to the objectives placed upon parties by s 5A(4) of the Court Procedures Act 2004 (ACT).
Of additional but lesser concern is the respondent’s lack of submissions about the consequences of receipt of the moneys they will receive. For example, it was not clear whether the respondent accepted the appellant was able to direct that the security be applied in whatever way that he directed in respect of costs and interest on costs.
This may have been because the respondent was not intending to pursue the appellant for any further costs over and above the security already paid, but this was left unsaid on the evidence. Moreover, because of the approach taken on this application, the parties may yet have to grapple with these kinds of questions if the appellant pursues assessment, which he is entitled to do even if the security is released.
The court has no desire to keep a successful party out of recovering costs to which it might otherwise be entitled. It is simply that what should have been a straightforward application achieving finality in the parties’ dealings with each other was made less so by the lack of detailed evidence that was plainly within the resources of the respondent to supply and the creation of uncertainty around any remaining costs claimed, which again, could have been avoided by appropriate orders being made on this application in proceeding.
Notwithstanding these concerns, I have determined to release the security because: (a) The figures were presented under affirmation of a solicitor with 20 years’ experience in commercial litigation, including experience in costs assessments. (b) The disbursements alone exceeded $30,000 and the professional costs were approximately $70,000. (c) Drawing on experience, and having regard to the nature of the one-day appeal, it is unlikely that the costs would be so greatly reduced as to amount to less than $30,000. Even if the disbursements and costs were reduced by two thirds on assessment, they would still exceed the security paid.
Accordingly, on fine balance, I was satisfied that the amount that will ultimately be payable to the respondent will exceed the amount in court. The consequence is that the full amount of security will be released.
However, due to the lack of the opportunity given to the appellant to scrutinize the costs incurred and meaningfully respond to the evidence or whether to consent to the application, it is appropriate that each party bear their own costs of the application.