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Category: Costs

Parties: Proceedings No 2025/00361558
Robin John Spencer (Plaintiff) (Self represented)
The Trustee for CCG Projects Trust (First Defendant)
CCG Pty Ltd (Second Defendant)
The Trustee for The RCS Unit Trust (Third Defendant)
Fairwether Holdings Pty Ltd (Fourth Defendant)
State of New South Wales (Fifth Defendant)
CCG Projects Pty Ltd (Sixth Defendant)
Proceedings No 2025/00361491
Robin John Spencer (Plaintiff)
The Trustee for CCG Projects Trust (First Defendant)
CCG Pty Ltd (Second Defendant)
The Trustee for the RCS Unit Trust (Third Defendant)
Fairwether Holdings Pty Ltd (Fourth Defendant)
State of New South Wales (Fifth Defendant)
NSW Civil and Administrative Tribunal (Sixth Defendant)
CCG Projects Pty Ltd (Seventh Defendant)

Representation: Counsel:
Mr D Robertson (Second Defendant)
Mr D Holmes (Third and Fourth Defendant)
Ms J Chapman (Fifth Defendant)
Mr E Vuu (Sixth Defendant)
Solicitors:
Terzon Group Legal (First and Sixth Defendant)
Hickey Law (Second Defendant)
Maclarens Lawyers (Third and Fourth Defendant)
Crown Solicitors’ Office (Fifth Defendant)

File Number(s): 2025/00361558; 2025/00361491

Publication restriction: Nil.

JUDGMENT

1. On 23 April 2026, I determined four notices of motion heard by me on that day: Spencer v The Trustee for CCG Projects Trust [2026] NSWSC 443. I reserved on the question of the appropriate costs order in relation to the second defendant, CCG Pty Ltd (“CCG”).

2. The background to the proceedings is that the plaintiff, Mr Spencer, was evicted from premises by his then landlord CCG Projects Pty Ltd in 2024. Due to a typographical (or other) error on the part of the landlord’s real estate agent, the relevant documentation before the NSW Civil and Administrative Tribunal (“NCAT”) described the landlord as CCG Pty Ltd rather than CCG Projects Pty Ltd. Mr Spencer now brings proceedings against multiple defendants over his eviction, including CCG.

3. CCG was successful in obtaining orders that it be removed as a party from both the judicial review proceedings 2025/00361491 and the common law proceedings 2025/00361558 commenced against it by Mr Spencer. I was satisfied that CCG had never been Mr Spencer’s landlord and accordingly made orders removing it from both proceedings.

4. Given that CCG was successful, I proposed that Mr Spencer be ordered to pay its costs on the ordinary basis. CCG was not content with that order and instead sought alternate costs orders.

Indemnity costs?

5. Counsel for CCG initially submitted in writing that its costs should be paid on an indemnity basis. The background to that application is as follows.

6. Mr Spencer first commenced these proceedings on 19 September 2025. On 5 October 2025, the second defendant’s solicitor, Mr Hickey, emailed the plaintiff and informed him that CCG was not the landlord of the premises and was wrongly named in the proceedings. In a subsequent email on 7 October, Mr Hickey attached a title search of the premises and an ASIC search of CCG Projects Pty Ltd. Mr Spencer was put on notice that the second defendant would seek indemnity costs should the proceedings not be discontinued. Mr Spencer responded that he would not discontinue the claims because CCG was the named applicant in the NCAT proceedings.

7. On 31 October and 7 November 2025, the second defendant filed notices of motion in each proceedings seeking orders that it be removed as a party. It relied on two affidavits sworn by George Inatey on 25 February 2026.

8. On 18 November 2025, the plaintiff filed a notice of motion seeking leave to join CCG Projects Pty Ltd and Roky Gorgees as the sixth and seventh defendants.

9. The third and fourth defendants entered a notice of appearance on 4 December 2025 and subsequently filed an affidavit of Sharon Begovich affirmed on 20 April 2026. Ms Begovich is the director and principal of the fourth defendant, Fairwether Holdings Pty Ltd, which is the corporate trustee of the third defendant, the RCS Unit Trust. For ease of reference, I have referred to those defendants collectively as “LJ Hooker Fairfield”. Ms Begovich deposed that the landlord who appointed her as managing agent was CCG Projects Pty Ltd and not CCG Pty Ltd.

10. The sixth defendant relied upon an affidavit of Pasquale Maltese affirmed on 23 April 2026. Only paragraphs 1 to 8 of that affidavit were read in relation to the motions before the Court. The effect of them was that CCG Projects Pty Ltd is the registered proprietor of the premises formerly leased to Mr Spencer according to annexed title searches.

11. By the time the motions came before me for hearing, Mr Spencer had accepted that the relevant documentation established that CCG was not his landlord. After some further exchanges he also accepted that this meant that CCG could be removed as a party.

12. Although I am satisfied that Mr Spencer should pay CCG’s costs of the motions, the question is whether I would order those costs be paid by Mr Spencer on an indemnity basis whereby “all costs are to be allowed”: Uniform Civil Procedure Rules 2005 (NSW), r 42.5 (“UCPR”).

13. It is well established that an order for indemnity costs is not made to punish an unsuccessful party for persisting with a case that fails. Rather, such an order is made to compensate a successful party for costs incurred in certain circumstances. The principles are well settled. In Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, Woodward J explained that where an action is commenced or continued in circumstances where “the applicant, properly advised, should have known that he had no chance of success” then:

… the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.

14. Similarly, in Hamod v State of New South Wales [2002] FCA 424; 188 ALR 659 at [20] it was held that indemnity costs can be ordered when the court takes the view that it was unreasonable for a party to have subjected the other party to the expenditure.

15. I have considered whether Mr Spencer acted unreasonably or in bad faith in maintaining that CCG should remain as a party to the proceedings despite not being his landlord. His reason for doing so was that he believed he needed to join CCG as a party because it is named in the NCAT documents. In those circumstances, I am not satisfied that Mr Spencer’s belief that CCG should remain as a party falls into the category of cases where a litigant has wilful disregard of the known facts. Accordingly, I do not propose to order that CCG’s costs be paid on an indemnity basis.

16. I note that in oral submissions counsel for CCG accepted that as a practical matter, it may not “make a huge amount of difference” whether the second defendant is awarded indemnity costs or costs on the ordinary basis.

Bullock order?

17. After I indicated to Mr Robertson that my preliminary view was that I did not consider an indemnity costs order should be made in this matter, Mr Robertson then submitted that I would make a Bullock (Bullock v London General Omnibus [1907] 1 KB 264) order as against the third, fourth and sixth defendants.

18. Mr Robertson accepted that the initial error in relation to the misnaming of Mr Spencer’s landlord was not the fault of Mr Spencer but maintained that his client had been brought to court unnecessarily. He pointed to the silence on the part of the other parties until the days leading up to the hearing of the motions, which, he submitted, caused Mr Spencer to persist in his belief that CCG was the landlord. It was submitted that the third and fourth defendants had been a party to the proceedings from the outset and it was their error in the NCAT proceedings below that caused the proceedings to be commenced against CCG.

19. As for the sixth defendant, Mr Robertson pointed to a subpoena issued on 9 November 2025 to the sixth defendant seeking a copy of the trust deed establishing CCG Projects Trust. Nothing was produced in response to that subpoena until 22 April 2026, the day preceding the hearing.

20. In response to these submissions, Mr Holmes, counsel for the third and fourth defendants, submitted that even had his client filed and served their material at an earlier date, this would not have caused Mr Spencer to change his position and thus would not have prevented the second defendant from incurring the costs of the motion in any event. Mr Holmes further submitted that it was only after the intervention of the Court in questioning the plaintiff that he consented to the removal of the second defendant as a party.

21. Mr Vuu, counsel for the sixth defendant, CCG Projects Pty Ltd, adopted Mr Holmes’ submissions. He also submitted that it was open to the second defendant to have sought substitution of the parties at an earlier stage, rather than simply seeking that it be removed as a party in its notice of motion filed on 31 October 2025. It was further submitted that if the Court was minded to make a Bullock order, then it would be on the ordinary basis and for a far lesser amount or proportion than it would be for the third and fourth defendants.

22. The factual issue at the crux of Mr Robertson’s application was whether Mr Spencer resiled from his position that CCG was a proper party to the proceedings because of the material filed by the third, fourth and sixth defendants or because of my exchanges with Mr Spencer during the hearing.

23. At the outset of submissions, the plaintiff maintained his position that the second defendant should not be removed:

HER HONOUR: … Do you still maintain, given the evidence that has been filed, that your landlord was CCG Pty Ltd as opposed to CCG Projects Pty Ltd?

PLAINTIFF: No, I don’t, your Honour.

HER HONOUR: So, given that you don’t press that, do you accept that the second defendant should be removed as a party to these proceedings?

PLAINTIFF: No, I don’t, your Honour. …The NCAT orders name CCG Pty Ltd as the party. Until I see the documentation provided to NCAT, I don’t believe that the second defendant should be dismissed from the proceedings.

…

HER HONOUR: I understand your submission, but my question is: Now that you accept there has been a mistake and they were never your landlord, why can't they be removed from these proceedings? The proceedings will still go on with the true landlord. Why do they need to remain in the proceedings?

PLAINTIFF: Because unless there are any documents that detail ‑ if all the documents through discovery demonstrate that there was only the proposed sixth defendant, CCG Projects Pty Ltd, throughout the entire tenancy and eviction process, then I am willing to accept that. But if there are any documents that provably have misled the Tribunal to make an order in the name of CCG Pty Ltd, then I think that is material to the case.

24. After some back and forth about the relevance of CCG being named in the NCAT proceedings, the plaintiff ultimately conceded the point:

HER HONOUR: So, if CCG is removed from these proceedings, this Court still has power to look at that decision of NCAT because the proper party that was before it is here because the sixth defendant ‑ you have heard from Mr Vuu, he doesn't oppose CCG Projects being joined as a party, so what rights ‑ or how are you disadvantaged by CCG being removed?

PLAINTIFF: I am willing to submit to that removal.

25. I subsequently inquired with the plaintiff about the effect of the new material on his position:

HER HONOUR: … When the second defendant said to you we are not the landlord.

PLAINTIFF: Yes.

HER HONOUR: You didn't accept that but when the second defendant and the third and fourth defendant and now the newly added sixth defendant.

PLAINTIFF: Yes.

HER HONOUR: Altogether put material before the court saying the second defendant is not the landlord now you accept it based on all of that evidence?

PLAINTIFF: Yes.

HER HONOUR: Okay, and you became aware of that in the last few days.

PLAINTIFF: Yes, exactly.

26. In light of these exchanges, I am satisfied that although Mr Spencer may not have been willing to accept that CCG was not his landlord until he received the additional affidavits from Ms Begovich and Mr Maltese shortly before the hearing, that did not alter his view that CCG needed to continue as a party given it was the “named” landlord in the NCAT proceedings.

27. A Bullock order requires an unsuccessful defendant to indemnify a plaintiff for the costs the plaintiff is ordered to pay the successful defendant. The test for making a Bullock order was described by Gibbs CJ in Gould v Vaggelas (1985) 157 CLR 215 at 229–230; [1985] HCA 75 as follows:

Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution. … In my respectful opinion the true position was clearly stated by Blackburn C.J in Steppke v. National Capital Development Commission, when he said that “there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant”. (Footnotes omitted.)

28. In Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 at [229], Leeming JA identified the “true principle” as the proposition that there must have been some conduct on the part of the unsuccessful defendant that would make it fair to impose liability on it for the costs of the successful defendant.

29. I am not satisfied that this is a situation in which a Bullock order is appropriate. The third, fourth and six defendants were neither successful nor unsuccessful on the motion. Despite this, the Court has “full power to determine by whom, to whom and to what extent costs are to be paid”: s 98(1)(b) of the Civil Procedure Act 2005 (NSW). This discretion is subject to the qualification that it “must be exercised judicially in accordance with established principle and factors directly connected with the litigation”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65] (McHugh J).

30. I have considered whether the conduct of either the third and fourth defendants or the sixth defendant contributed in any way to Mr Spencer’s reluctance to remove CCG as a party such that any or all of them should contribute to CCG’s costs. I am satisfied, based on the exchanges with Mr Spencer at the hearing, that it was not the late filing of that material which led Mr Spencer to agree to have CCG removed as a party; albeit that that material did lead him to accept that CCG was not his landlord. Rather, it was the exchanges with the Court that led him to accept that that CCG did not need to remain as a party in order for him to seek the relief he did.

31. I have further considered the submission that it was the actions of LJ Hooker Fairfield in misnaming the landlord in the NCAT documents which led Mr Spencer on the course he has now taken. Although that may well be the case, the fact remains, as set out at [67] and [68] of my previous judgment, that Mr Spencer has received legal advice that his claim has no reasonable prospect of success. It would appear from his affidavit evidence that he has received that advice from more than one source. Further, the question arose during the hearing of the motions as to whether I would refer Mr Spencer to the Pro Bono panel under r 7.36 of the UCPR. During submissions on that issue Mr Spencer indicated that if, hypothetically, he was advised not to pursue these proceedings it would be unlikely that he would accept that advice. He stated that he is very “resolved” in his conviction.

32. In the circumstances there is no reason to depart from the usual order that costs follow the event.

Order

33. Accordingly, I make the following order:

34. The plaintiff is to pay the second defendant’s costs of the motions on the ordinary basis.

**********

Amendments

05 June 2026

Catchwords added.