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REST’s motion sought interim injunctive relief pending the appeal. It was dismissed after REST elected not to give an adequate undertaking as to damages to secure the injunction [1]. The costs judgment does not revisit the full merits of the injunction motion. Price AJA states that the reasons assume familiarity with the Principal Judgment and adopts its abbreviations [1]. The account of the earlier motion available here is therefore limited to the matters expressly repeated in this costs decision.

The parties agreed that costs should follow the event. They also accepted that the relevant event was the dismissal of REST’s motion, meaning REST should pay the Non-Dexus Bloc Respondents’ costs [2]. The dispute was whether those costs should be assessed on an indemnity basis rather than the ordinary basis. IFM, the Future Fund and APAC supported indemnity costs. TCorp and UTA did not seek indemnity costs [3]. REST opposed that higher basis, contending that its conduct was not unreasonable or delinquent [4].

The court ordered REST to pay the first, second, third, fourth, fifth, ninth and tenth respondents’ costs on an ordinary basis, as agreed or assessed. It made no order concerning the costs of the sixth, seventh and eighth respondents, collectively described as Dexus [8]. The stated reason was that Dexus had not sought costs and had no active role in the proceedings [7].

Why the court decided this way

The court began with the parties’ agreement about ordinary costs. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) was cited for the familiar rule that costs follow the event. As the motion had been dismissed, REST accepted that it should bear the Non-Dexus Bloc Respondents’ costs [2]. That resolved who would pay, but not the basis on which those costs would be calculated.

The indemnity question engaged the court’s broad costs discretion under s 98 of the Civil Procedure Act 2005 (NSW). Price AJA described the governing approach as requiring “some special or unusual feature or circumstance” to justify indemnity costs, with attention focused on the conduct of the party against whom the order is sought [5]. The judgment distinguishes a case that is merely weak from one pursued in circumstances where the party should have known it had no chance of success. The latter may support indemnity costs; mere weakness does not, without something more in the party’s conduct [5].

The applicants for indemnity costs relied on the proposition that REST should have known its injunction motion had “no chance of success”, was “doomed to fail”, or was “hopeless”, particularly because REST had been alerted to concerns about the form of undertaking it proposed [3]. The court did not accept that characterisation of REST’s conduct. A significant circumstance was that the balance of convenience had been determined in REST’s favour in the Principal Judgment, at J[59]. Price AJA treated this as a “significant measure of success” on the motion, even though the motion was ultimately dismissed [6].

The undertaking issue also mattered. REST’s election not to give the undertaking at J[63] was not, in the court’s view, unreasonable or delinquent conduct, nor a wilful disregard of known facts or clearly established law [6]. Further, REST had been placed in the position of proceeding with the motion despite an undertaking acceptable to it and the Non-Dexus Bloc Respondents, because that undertaking could not take effect through REST’s acceptance alone. The judgment points to J[23] of the Principal Judgment on that point [6].

The result is contextual rather than a general rule that a favourable balance of convenience prevents indemnity costs. The court considered the particular procedural position, the extent of REST’s success on one part of the injunction analysis, and the circumstances surrounding the undertaking. It was not persuaded that REST’s application was so lacking in merit as to justify departing from ordinary costs [6].

Before and after state of the law

The judgment presents itself as an application of established costs principles, not as a change to them. Section 98 of the Civil Procedure Act 2005 (NSW) gives the court a broad costs discretion, while r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) supplies the ordinary starting point that costs follow the event [2], [5]. The parties’ agreement meant the ordinary costs question was straightforward. The contested matter was whether particular conduct justified a more onerous costs basis.

Before this decision, the authorities identified in the reasons had already recognised that persistence with a case that a party should have known had no chance of success could be a circumstance supporting indemnity costs [5]. The judgment refers to Fountain Selected Meats, as explained through Vagg, and also cites Cabport and Cappello [5]. It states that a court will not lightly depart from ordinary costs and that something more than mere weakness is required, generally involving some form of wilful conduct [5].

After this decision, the stated principles remain the same. The decision illustrates how those principles were applied to this motion: the court refused indemnity costs notwithstanding dismissal of the motion, because of the circumstances it identified at [6]. It does not purport to amend the test, establish a new category of exception, or decide the merits of REST’s appeal. The supplied judgment text gives no account of any subsequent change in the law.

The decision also shows that the result of an interlocutory application and the costs basis are distinct questions. REST lost the motion and accepted ordinary costs liability, yet the court did not infer from that outcome alone that REST had pursued a hopeless case or behaved culpably. The costs question required a separate assessment of the conduct and circumstances relevant to indemnity costs [2]–[6].

Key passages with plain-English translation

At [2], Price AJA identifies the event as “the dismissal of the motion” and records that REST should pay the Non-Dexus Bloc Respondents’ costs. In plain English, the parties agreed that the unsuccessful party would bear the other identified parties’ costs. That agreement did not resolve whether the costs would be ordinary or indemnity costs.

At [5], the judgment says that indemnity costs require “some special or unusual feature or circumstance”. This means that the ordinary costs basis remains the usual position, and a party seeking the higher basis must identify a reason grounded in the case or the opposing party’s conduct that warrants it.

Also at [5], the court says it “will not lightly depart” from ordinary costs, and that something beyond “mere weakness of a case” is needed. The practical distinction expressed in the reasons is between a case that ultimately fails, or has weaknesses, and a case pursued in a way that satisfies the demanding standard described in the authorities.

At [6], Price AJA says REST had achieved a “significant measure of success” because the balance of convenience favoured injunctive relief at J[59]. In plain English, the motion’s dismissal did not mean that every aspect of REST’s position had been rejected. The court treated the favourable balance-of-convenience finding as relevant when deciding whether REST’s case had been so hopeless that indemnity costs were appropriate.

At [6], the court rejects the contention that REST’s election not to give the undertaking amounted to “unreasonable or delinquent conduct”. The reasons connect that conclusion to the circumstances: the proposed 6 July Undertaking was acceptable to REST and the Non-Dexus Bloc Respondents, but could not become effective through REST’s acceptance alone because Dexus had not accepted it. The court did not treat REST’s choice as wilful disregard of known facts or clearly established law.

Finally, [7] explains the separate treatment of Dexus: it did not seek costs and had no active role. That is why the court made no costs order in relation to the sixth, seventh and eighth respondents, rather than making a positive order requiring REST to pay them.

What fact patterns trigger this precedent

The decision is most directly relevant to costs submissions after an unsuccessful interlocutory injunction motion where the parties agree that ordinary costs follow the event but dispute whether indemnity costs are warranted. It is particularly useful where an indemnity application alleges that the moving party should have known the application had no chance of success, or persisted despite being alerted to a problem with an undertaking [3].

The features that mattered here were specific. The balance of convenience had favoured the applicant at an earlier stage of the injunction analysis [6]. The undertaking issue did not arise simply because the applicant ignored an available undertaking accepted by all relevant parties: the court understood that the 6 July Undertaking could not take effect through REST’s acceptance alone, because Dexus had not accepted it [6]. The court also considered whether REST’s election not to give the undertaking represented unreasonable or wilful conduct and answered that question in the negative [6].

The judgment therefore provides a framework for identifying relevant questions, rather than a checklist that mechanically determines the costs outcome. A costs analysis may need to distinguish the ultimate dismissal of the application from the reasons for dismissal, identify what the court had decided about the merits or balance of convenience, and examine what the party knew about any asserted obstacle. The reasons also make the party’s conduct important: a weak case alone is not equated with the sort of conduct that may justify indemnity costs [5].

The decision is limited to the circumstances stated in these reasons. It does not establish that a favourable balance of convenience will always defeat an indemnity costs application, or that the absence of agreement about an undertaking will necessarily excuse a party’s conduct. Nor does it decide the substantive rights in the underlying appeal. The earlier judgment would need to be considered for fuller information about the injunction issues, but this costs decision itself gives only the specified references to J[23], J[59] and J[63].

How later courts have treated it

The supplied judgment contains no information about later decisions considering or applying this costs decision. It was delivered on 18 August 2026, and the source provided here gives no subsequent judicial treatment. It is therefore not possible, on this material, to say whether later courts have followed, distinguished or otherwise treated it.

The judgment itself does identify earlier authorities on costs. It cites Doppstadt for the ordinary rule that costs follow the event [2]. It cites Baulderstone, Vagg and Cappello in relation to the description of a case said to have no chance of success, and cites Cabport in connection with unreasonable or delinquent conduct [3]–[5]. Mead, Collier and Cappello are cited for the requirement of a special or unusual feature or circumstance justifying indemnity costs [5]. Fountain Selected Meats is cited for the proposition that persistence with a case that a party should have known had no chance of success may be relevant [5].

Those citations show the doctrinal sources Price AJA relied on, but the decision’s treatment of each authority should not be overstated beyond the reasons. The judgment sets out the relevant propositions and applies them to REST’s motion. It does not provide a full account of the facts or outcomes of all those authorities. Nor does the material provided establish how courts have treated the present decision after its delivery.

Still-open questions

The decision leaves the underlying injunction and appeal issues outside the scope of its costs determination. It assumes familiarity with the Principal Judgment rather than repeating its full reasoning [1]. Accordingly, the costs reasons do not disclose the complete factual and legal basis for the injunction motion, or the full reasons why it was ultimately dismissed after REST’s election concerning the undertaking.

The decision also does not set out a general formula for weighing a favourable balance-of-convenience finding against a later failure to obtain injunctive relief. It states that the favourable finding was a significant measure of success in this case [6], but does not say what weight that consideration would have in different procedural or factual circumstances.

The undertaking issue is likewise addressed in a case-specific way. The court records that the 6 July Undertaking was acceptable to REST and the Non-Dexus Bloc Respondents, but could not come into effect with REST’s acceptance alone [6]. The reasons do not set out the undertaking’s full terms or explain the positions of each party in greater detail. Those matters cannot be reconstructed from this costs judgment alone.

Finally, although the judgment restates the established threshold for indemnity costs, it does not attempt to exhaustively define what conduct counts as wilful, unreasonable or delinquent in other cases. Its central point is narrower: on the circumstances identified, REST’s motion was not so lacking in merit, and its conduct was not so unreasonable, as to justify indemnity costs [5]–[6].

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.