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[2026] NSWCA 97
respondent. Time to file the application for leave to appeal was extended to 1 February 2026. Leave to appeal was refused. The applicant was ordered to pay the respondents' costs ([30]).
The applicant's defamation claim was dismissed because the Court found it was brought outside the applicable limitation period. Before he started the case, the respondents had explained their limitation argument and warned that they would seek indemnity costs. The District Court ordered indemnity costs, and the Court of Appeal found no arguable error in that discretionary decision. It extended time for the leave application but refused leave to appeal, so the costs order remained undisturbed.
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The applicant, Jamie Summons, sought leave to appeal only against an indemnity costs order made after his defamation proceedings were dismissed. The underlying claim concerned statements in two ASX announcements made by 1414 Degrees Ltd on 23 June and 15 July 2021 ([2]). Summons served a purported Concerns Notice in August 2025, more than four years after those announcements ([3]).
The respondents wrote to him on 26 September 2025. They said ss 14B and 14C of the Limitation Act 1969 (NSW) barred the claims and warned that, if proceedings were commenced and dismissed, they would seek costs on a full indemnity basis ([4]). Summons later started proceedings, on 28 October 2025 ([8]). The correspondence and the parties' exchanges became relevant to the costs decision. The judgment records several insulting and dismissive emails sent by Summons after the warning ([5]-[10]).
The District Court dealt with the limitation issue as a separate question. On 19 December 2025, it found the defamation claim statute-barred, struck out the statement of claim and dismissed the proceedings. It also refused a proposed amendment that sought to challenge a 2021 Deed of Release, finding that the proposed claims still relied on an underlying defamation claim that remained statute-barred ([11]-[12]). Summons did not seek leave to appeal those decisions. The Court of Appeal application concerned the costs order alone ([14]).
The primary judge ordered indemnity costs, reasoning that the applicant had been told early that the claim was untenable, persisted with it, and then proposed an amendment that did not overcome the limitation problem ([15]). The Court of Appeal extended the time for filing the leave application to the date it had been filed, 1 February 2026, because no prejudice from dealing with the late application was shown. It refused leave to appeal and ordered Summons to pay the respondents' costs ([16], [30]).
The central question was not whether the Court of Appeal would itself have made the same costs order at first instance. It was whether the applicant had shown a basis for appellate intervention in a discretionary decision, and whether that basis met the threshold for leave.
The Court described the costs-only appeal context as one in which leave is not readily granted. The reasons include the public interest in avoiding further costs spent arguing about costs, and the risk that those costs may outweigh the difference between ordinary and indemnity costs ([17]). It also referred to the general reluctance to grant leave where an appeal raises no issue of principle and asks only for established principles to be reapplied to a particular case ([18]).
For review of the primary judge's discretionary decision, the Court applied the principles in House v The King. As summarised at [19], an appellant would need to show such matters as an error of legal principle, reliance on an irrelevant consideration, a factual mistake, failure to take account of a material matter, or a result so plainly unreasonable or unjust that an error must have occurred. The Court concluded that no arguable error of this kind had been shown ([24], [29]).
The factual setting mattered. Before the proceedings began, the respondents told Summons their limitation position and said indemnity costs would be sought if he proceeded and lost ([4]). The claim was later dismissed on that limitation basis. The Court called the conclusion that the claim was time-barred “clearly correct” and observed that time had run out years before the proceedings began ([22]). It considered that the primary judge could treat persistence with the claim, despite the warnings and the outcome, as unreasonable litigation conduct ([23]-[24]).
The Court also considered the grounds alleging that the primary judge had failed to account for Summons's self-represented status and his attempt to reformulate the case. Self-representation can justify some allowance for lack of legal knowledge, unfamiliarity with court practices and lack of objectivity, but does not prevent an indemnity costs order ([26]). The Court found no arguable error in how the primary judge dealt with that factor. Likewise, the proposed amendments did not remove the limitation defect, so they did not establish an arguable error in the primary judge's assessment ([27]).
Finally, the Court rejected the proposed grounds that the order was unjust or disproportionate. Having regard to the facts found at first instance, it considered that indemnity costs were clearly open ([28]-[29]). The result was refusal of leave, not a fresh determination of the amount of costs.
The judgment describes a change to the defamation limitation framework brought about by the Defamation Amendment Act 2020 (NSW). The primary judge had found that Summons appeared to rely on the previous common law publication rule discussed in Dow Jones v Gutnick. The judgment says that, where a plaintiff relies on electronic downloads as publication, the amended law treats the cause of action as accruing when the material was first uploaded ([13]). The Court of Appeal did not decide a separate appeal on the limitation ruling, because no leave application challenged it. Instead, it treated the District Court's limitation conclusion as the basis on which the case had been dismissed ([14], [22]).
The judgment therefore does not provide a comprehensive account of the amended limitation provisions or decide every question about how they apply to online publication. Its relevant point is narrower: the respondents had explained their limitation argument before proceedings began, and the District Court later accepted that the claim was out of time.
On costs, s 98 of the Civil Procedure Act 2005 (NSW) gives the court a wide discretion in determining how costs are to be paid ([23]). The Court restated that indemnity costs require a clear basis to conclude that litigation conduct was unreasonable, and cited Capello for the proposition that the discretion may be enlivened when a party persists in what should have been seen as a hopeless case ([23]). This judgment applies those principles to the particular combination of an apparently time-barred claim, advance warning, persistence and the primary judge's findings about the correspondence.
For costs-only appeals, s 127(2)(b) of the District Court Act 1973 (NSW) required leave. The Court applied a restrained leave approach: an issue of principle or public importance, or reasonably clear error going beyond the merely arguable and resulting in injustice, may justify leave ([17]-[21]). The decision did not alter those principles; it applied them and found the threshold unmet.
At [21], the Court said leave is generally granted where there is an issue of principle or public importance, or where reasonably clear error beyond the merely arguable has caused injustice. In plain English, the applicant had to identify more than a disagreement about how the primary judge weighed the circumstances. He had to show a significant legal issue or a sufficiently clear discretionary error.
At [23], the Court said indemnity costs may be available where a party persists in what should have been seen as a hopeless case. This does not mean that every unsuccessful claim attracts indemnity costs. The Court referred to a discretionary power and the need for a clear basis to find unreasonable litigation conduct. Here, the advance warning and the fact that the claim was dismissed on the identified limitation ground formed part of the context ([22]-[24]).
At [26], the Court said self-representation does not preclude indemnity costs. The passage recognises that an unrepresented litigant's position can call for allowance, but it does not make self-representation a complete answer to a costs application. In this case, the Court found no arguable error in the primary judge's treatment of that circumstance.
At [27], the Court rejected the argument that the applicant's attempt to “alter course” through late amendments showed an error. The reason was that the proposed amendments did not cure the limitation defect at the heart of the claim. This is a case-specific conclusion about the proposed pleading as described in the judgment, not a general rule that amendments cannot affect costs.
At [29]-[30], the Court concluded that the costs order was open and refused leave. The practical effect was that the District Court's indemnity costs decision remained undisturbed, while the applicant was also ordered to pay the respondents' costs of the leave application.
The decision is most relevant to a costs-only leave application following an adverse discretionary costs order, particularly where the proposed appeal does not identify an issue of principle or public importance. The Court emphasised that costs decisions arise in many cases and that the primary judge is generally well placed to weigh the relevant circumstances ([18]).
It may also be relevant where a party continues litigation after receiving a clear explanation of a threshold defect, such as a limitation issue, and advance notice that indemnity costs will be sought if the case proceeds and fails. In this judgment, the Court relied on the timing and substance of the warnings, the fact that the claim was dismissed on the identified limitation basis, and the primary judge's findings about the applicant's conduct ([4], [15], [22]-[24]).
Self-representation is relevant but not decisive. A court may allow for limited legal knowledge and unfamiliarity with court procedure, yet still make an indemnity costs order in circumstances it considers sufficiently unreasonable ([26]). The judgment does not establish that a warning letter by itself is enough, or that an unsuccessful claim is necessarily unreasonable. Its reasoning depends on the circumstances found by the primary judge and the absence of an arguable House v The King error.
The case also addresses late amendments offered as evidence that a litigant tried to regularise or reformulate a proceeding. The Court considered whether the proposed change cured the defect that led to dismissal. Because it did not, the amendment argument did not show error in the costs order ([27]). The decision does not determine how a materially different amendment, or a different procedural history, would affect the costs analysis.
The supplied judgment is dated 25 May 2026 and contains no discussion of later decisions applying or distinguishing Summons v 1414 Degrees Ltd. On the material provided, later treatment cannot be assessed. It would be inaccurate to infer from this judgment how subsequent courts have treated it.
The judgment itself refers to earlier authorities. It cites Be Financial and The Age Company Ltd v Liu for the approach to granting leave ([21]), and John Anthony Arena, together with authorities it refers to, for the general restraint applied to costs-only appeals ([18]). It applies House v The King to review of the discretionary costs decision ([19]). It cites Oshlack for the breadth of the costs discretion under s 98 ([23]), and Capello for the potential availability of indemnity costs where a party persists in a hopeless case ([23]).
For unrepresented litigants, the Court refers to Quach, Wentworth v Rogers, Huang and Capello ([26]). It uses those authorities to recognise both that some allowance may be appropriate and that self-representation is not a bar to indemnity costs. Those citations explain the legal framework applied in this judgment; they are not evidence of how later courts have treated this decision.
The judgment does not decide an appeal against the finding that the defamation claim was statute-barred. That issue was not challenged in the leave application ([14]). Consequently, the decision should not be read as a full appellate determination of the amended limitation provisions or the precise operation of the first-upload rule in other circumstances.
Nor does the judgment set a formula for when a warning makes persistence unreasonable. It confirms that advance notice was relevant here, but it does not say that a warning letter alone will justify indemnity costs. The assessment remains tied to the circumstances and findings in the particular case, including the conduct of the litigation and the outcome ([15], [22]-[24]).
The decision also leaves open how much allowance should be made for self-represented litigants in different cases. It recognises factors that may warrant allowance, while holding that self-representation did not show error on these facts ([26]). Similarly, it does not explain how a proposed amendment that genuinely removed a limitation defect, or otherwise materially changed the basis of a claim, would affect an indemnity costs assessment.
Finally, the judgment does not establish that an indemnity costs order is the ordinary consequence of bringing a claim that fails on limitation grounds. Its conclusion was that the primary judge's order was available on the facts found and that the proposed appeal disclosed no arguable discretionary error ([28]-[30]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Summons v 1414 Degrees Ltd [2026] NSWCA 97
Hearing dates: On the papers
Date of orders: 25 May 2026
Decision date: 25 May 2026
Before: Payne JA; Kirk JA
Decision: (1) Time to file the application for leave to appeal extended to 1 February 2026.
(2) Leave to appeal refused.
(3) The applicant to pay the respondents’ costs.
Catchwords: APPEAL – application for leave to appeal on costs only – underlying proceedings relate to a defamation claim that was statute barred – whether indemnity costs properly ordered – where it was communicated to the applicant in advance that the claim was hopeless and the applicant proceeded regardless – where advance notice given that indemnity costs would be sought – leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Defamation Amendment Act 2020 (NSW)
District Court Act 1973 (NSW), s 127
Limitation Act 1969 (NSW), ss 14B, 14C
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Capello v HomeBuilding Pty Ltd [2023] NSWCA 109
Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56
House v The King (1936) 55 CLR 499
Huang v Attapallil [2017] NSWCA 181
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category: Principal judgment
Parties: Jamie Summons (Applicant)
1414 Degrees (First Respondent)
Kevin Moriarty (Second Respondent)
Representation: Counsel:
Self-represented (Applicant)
T Senior (First and Second Respondents)
Solicitors:
Self-represented (Applicant)
Wallmans Lawyers (First and Second Respondents)
File Number(s): 2026/00051938
Publication restriction: Nil
Two ASX Announcements were made by the first respondent, 1414 Degrees Ltd, about the applicant; one on 23 June 2021 and one on 15 July 2021.
On 26 August 2025, the applicant served a purported Concerns Notice on the respondents regarding the publication of the alleged defamatory statements in 2021 made in or based on the ASX Announcements.
On 26 September 2025, the respondents explained to the applicant in writing that his defamation claims were statute barred by ss 14B and 14C of the Limitation Act 1969 (NSW). The respondents also explained to the applicant in writing that if defamation proceedings were nevertheless commenced, and dismissed as they would inevitably be, indemnity costs would be sought. They said:
“… your claim is barred by the operation of sections 14B and 14C of the Limitations Act 1969 (NSW), which bar claims for defamation being brought more than 12 months after the first online publication of a matter…any claim for defamation you bring is unquestionably doomed to fail and if you bring such a claim our client will defend it and will rely upon this correspondence to seek their costs on a full indemnity basis.”
The applicant’s response to this explanation was to ignore the clear warnings he had been given and, instead, to make offensive and puerile remarks in correspondence with the respondents’ solicitors.
On 2 October 2025, in response to the letter from the respondents, the applicant sent five emails. In his judgment, the primary judge set out in some detail the “obviously indefensible correspondence” that the applicant had directed to the respondents, including:
an email to the respondents’ solicitors at 10:23am, in which he called the 26 September 2025 statements “lies”; in response to the foreshadowed application for indemnity costs, said, “ooooohhhh – scary scary”, which the primary judge described as “childish[]”;
an email to the respondents’ solicitors at 2:53pm, in which he “gratuitously insulted the solicitor by suggesting she was not legally qualified” (to quote the primary judge);
an email to the second respondent at 2:11pm, in which he “insulted the second defendant as a narcissistic person and ‘too stupid to think there are consequences’” (again quoting the primary judge), concluding with the words:
“God bless stupidity. Now it goes public, for all to see.
Loving it….”
an email to the respondents’ solicitors at 5:36pm, in which he described the 26 September letter as “Blah”. The primary judge described the applicant as “utterly and derisorily dismissive” of that letter.
The primary judge was correct to describe the applicant’s correspondence as “obviously indefensible”.
On 28 October 2025, years out of time, the applicant commenced defamation proceedings.
On 10 December 2025, the respondents again wrote to the applicant and explained why the applicant’s claims were time-barred and invited the applicant to discontinue the proceedings.
The same day, the applicant responded to that correspondence denying that his claim was statute barred, and making further insulting statements including:
in an email to the respondents’ solicitors and to a Mr Lumsden, at 5:13pm, the applicant changed the salutation from “Dear Mr Lumsden” to “Dear Lumsden (Wankmans)”, and stated:
“Next time you threaten complete crap, maybe do some research on you [sic] client. Although once the lawyer ‘meter’ is on and your client is asleep, don’t wake him up before we get to antarctica.
In other words fuck off’.”
“Dear Lumbsdumb, sorry Lumbsden. Apologies, didn’t use spell check before sending.
Lets go baby. All witnesses are CC’d. Your letter is threatening while lacking substance. Intended to threaten to absolve liability.
Lawyers, cock roaches.
See you in court”
On 15 December 2025, the applicant made a belated attempt to significantly expand the scope of his claim. The proposed amended statement of claim sought to set aside a Deed of Release that had been executed between the applicant and the respondents on 14 July 2021. Restitution and/or equitable compensation/damages were claimed in respect of the Release, which was alleged to be vitiated by reason of duress, coercion, misrepresentation and unconscionable dealing. A declaration was sought that the Deed could not be used to bar the claims in defamation. On 19 December 2025, this proposed amendment was rejected by the primary judge on the basis that the claims made still relied on an underlying defamation claim which remained statute barred. No application for leave to appeal is brought from the decision of the primary judge to refuse leave to amend the claim.
The respondents also moved the court to strike out the applicant’s claim on the basis the defamation claim was statute barred. In the end both sides sought that the limitation issue be determined as a separate question, and the primary judge did so. Judgment in the District Court was handed down on 19 December 2025. The primary judge found that the defamation claim was statute barred; on that basis the statement of claim was struck out; leave to amend the statement of claim was refused; and the proceedings were dismissed.
It was apparent to his Honour that the applicant was operating under a misunderstanding that the previous common law publication rule explained in Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56 was applicable. The effect of the Defamation Amendment Act 2020 (NSW) was that where a plaintiff relied on electronic downloads as constituting publication, the cause of action in defamation was taken to have accrued on the date the subject matter was first uploaded. The primary judge found that this change in the law was the matter the respondents had communicated to the applicant in correspondence prior to the commencement of the proceedings. His Honour found that the applicant had consistently ignored the substance of this correspondence and instead met it with hostility.
No application for leave to appeal is brought from the decision of the primary judge to strike out the claim on the basis the cause of action was statute barred and to dismiss the proceedings.
“[59] Costs ordinarily follow the event. The defendants have been successful on their application to strike out the SOC and dismiss the proceedings. The plaintiff was unsuccessful on his motion seeking leave to amend.
[60] The solicitors for the defendant notified the plaintiff early that his claim was untenable and that, if he proceeded, they would seek the dismissal of the proceedings and indemnity costs.
[61] Indemnity costs are, relevantly, only awarded where [there] is a clear basis to conclude that there has been unreasonableness in the conduct of the litigation. I consider that threshold has been met in the present case.
[62] Early in the correspondence, the plaintiff was notified of the effect of the amendments to the Limitation Act. He nevertheless persisted with the untenable defamation claim and then sought to advance a new claim that was ineffective to circumvent the problem. This is relevantly unreasonable and, given the plaintiff failed for the reasons that had been identified by the defendants and they gave notice they would seek indemnity costs on that basis, I consider the appropriate costs order is that the plaintiff pay the defendants’ costs of the proceedings on an indemnity basis.”
The application for leave to appeal was made some days late. No prejudice is shown in dealing with the late filed application for leave to appeal. An extension of time to the date the application was filed is appropriate.
The applicant requires leave to appeal pursuant to s 127(2)(b) of the District Court Act 1973 (NSW), being an appeal from a judgment or order as to costs only. In Huang v Attapallil [2017] NSWCA 181, at [21], White JA said of the requirement for leave to appeal limited to the issue of costs:
“… Leave is required to appeal from a ‘judgment or order as to costs only’ because in many cases it is contrary to the public interest and creates injustice to the parties for costs to be incurred in arguments about costs. One of the reasons for the requirement of leave in small claims and in claims involving costs only is that the costs involved may swamp the money sum involved in the dispute…The difference between an assessment of costs on the ordinary basis and an on the indemnity basis might well be less than the costs involved in the application for leave to appeal and any appeal.”
“More generally, the Court is slow to grant leave in respect of an appeal restricted to a challenge to an order for costs, especially in a case which raises no particular issue of principle, but involves merely the application of well-established principles: Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 at [39]; Hillsea Pty Ltd v Joseph [2020] NSWCA 55 at [47]. That approach reflects not only the fact that decisions on costs are discretionary, but that the issue of awarding costs arises in nearly all cases, and trial judges are generally best placed to weigh up the interests involved.”
The primary judge was called on to make a discretionary judgment in relation to costs. The principles in House v The King (1936) 55 CLR 499 at 505 apply to an appeal from the exercise of that costs discretion. On an appeal it would be necessary for the applicant to show an error of legal principle, or that the primary judge took into account irrelevant matters, or mistook the facts or failed to take into account or give sufficient weight to material matters, or otherwise to show that the order was so plainly unreasonable or unjust that some such error must have occurred.
The grounds of the draft notice of appeal provide:
“1 The primary judge erred in principle in ordering that the Appellant pay the Respondents’ costs on an indemnity basis (Order 63(2)(c)).
2 The primary judge erred in the exercise of discretion by concluding that the circumstances warranted indemnity costs, in circumstances where the Appellant was self-represented and did not act unreasonably, abusively, or for an improper purpose.
3 The primary judge failed to take into account relevant considerations, including the Appellant’s bona fide attempts prior to the hearing to alter the course and regularise/reformulate the proceeding (including seeking leave to amend), and the proportionality of an indemnity costs order.
4 The primary judge took into account irrelevant considerations and/or gave disproportionate weight to matters relied upon by the Respondents (including correspondence/warnings), resulting in a plainly unjust outcome.
5 The indemnity costs order was disproportionate and unreasonable in the circumstances, thereby disclosing error in the exercise of the costs discretion.”
As a general rule, this court will grant leave to appeal in cases that involve issue(s) of principle or public importance or where it is reasonably clear that an error, going beyond the merely arguable, has been made, resulting in injustice: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
The applicant was explicitly warned, prior to commencing his claim, that his claims were statute barred and untenable and that if the applicant were to commence proceedings, indemnity costs would be sought when they were struck out. The proceedings for defamation were dismissed on the basis that the applicant’s claims were statute barred. That conclusion was clearly correct. Time had run out for the applicant to bring a defamation claim years before he commenced the case.
Section 98 of the Civil Procedure Act 2005 (NSW) provides a wide judicial discretion with respect of determining costs orders, including to what extent each party will bear or “to what extent costs are to be paid”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22], [44], [134]. The primary judge acknowledged that such an order is only made where there is a clear basis to conclude that there has been unreasonableness in the conduct of the litigation. The discretion to award indemnity costs may be enlivened where a party persists in what should have been seen to be a hopeless case: Capello v HomeBuilding Pty Ltd [2023] NSWCA 109 per Mitchelmore JA (with whom Simpson and Meagher JJA agreed) at [47].
The primary judge was satisfied the conduct of the applicant was sufficiently unreasonable to ground an order of costs on an indemnity basis. No arguable error of fact or law has been shown in that decision.
None of the proposed grounds of appeal raise any matter going beyond the merely arguable.
It is correct that, as a general rule, a court will be more reluctant to order indemnity costs against an unrepresented litigant, however the circumstances may make it appropriate to do so: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [48]. Some allowance should be made for an applicant’s lack of knowledge of the law, unfamiliarity with court practices and lack of objectivity as an unrepresented litigant: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542 (Kirby P, Hope and Samuels JJA agreeing). The applicant’s complaints about his status as a self-represented litigant do not, however, avail him here. The fact that the litigant is self-represented does not preclude the making of an indemnity costs order. So much was said in Huang at [38] and at [51]. No error, let alone any arguable error, has been shown in the way the primary judge addressed the applicant’s status as a self-represented litigant.
There is no issue of principle, question of public importance or reasonably clear error that would warrant the grant of leave to appeal in this case. For the foregoing reasons we make the following orders:
Time to file the application for leave to appeal extended to 1 February 2026.
Leave to appeal refused.
The applicant to pay the respondents’ costs.
**********
Summons
1414 Degrees Ltd
[2002] HCA 56
[1998] HCA 11
(2002) 210 CLR 575
(1936) 55 CLR 499
(1998) 193 CLR 72
(2013) 82 NSWLR 268
(1986) 6 NSWLR 534
Time to file the application for leave to appeal was extended to 1 February 2026. Leave to appeal was refused. The applicant was ordered to pay the respondents' costs ([30]).
The applicant’s suggestion that he took steps to “regularise the position” and to “alter course” by seeking to introduce substantial late amendments does not demonstrate any arguable error on the part of the primary judge. His Honour was correct that the proposed amendments did not cure the fatal Limitation Act defect at the heart of the applicant’s case. No error, let alone any arguable House v The King error, has been shown in the way the primary judge addressed the applicant’s attempts to “alter course”.
As to the applicant’s suggestion that an indemnity costs order was an “unjust” or “disproportionate” result, we do not agree. Having regard to the facts found by the primary judge, the conclusion that an award of indemnity costs was appropriate was clearly open.
No error has been shown in the exercise of the cost discretion by the primary judge. It was clearly open in the circumstances of this case to make an award of indemnity costs and his Honour did not err in doing so.