Twigg by her tutor Elizabeth Flintoft v Pitcher Partners Holdings Pty Ltd (No 8)

Representation: Counsel:
M Elliott SC with D K Smith (Plaintiffs)
P Knowles SC with B Dziubinski (Fourth and Fifth Defendants)
Solicitors:
Roberts & Partners Lawyers (Plaintiffs)
O’Loughlin Westhoff (Fourth and Fifth Defendants)

File Number(s): 2022/150914

Publication restriction: Nil

JUDGMENT

1. On 18 March 2025, I delivered the seventh judgment in these proceedings: Twigg by her tutor Elizabeth Flintoft v Pitcher Partners Holdings Pty Ltd (No 7) [2025] NSWSC 210 (Judgment).

2. In the Judgment at [157], I directed the parties to confer and provide various agreed orders to give effect to my reasons or, if they were unable to agree, to provide the plaintiff’s proposed orders and a document setting out the matters on which the parties disagree to my Associate, which they did.

3. The matter was subsequently before the Court for directions on 2 April 2025. On that occasion, I made final orders declaring that Twigg Co transferred the bonds to Max in breach of trust on or about 1 December 2020, declaring that Max and Twigg Co engaged in misleading or deceptive conduct, and entering judgment in favour of the plaintiffs against Max and Twigg Co in the sum of $320,163.13 plus simple interest.

4. The orders also set out a regime for the parties to file and serve evidence and written submissions on the extant issue of costs. This judgment deals with that issue.

5. For the reasons that follow, Max and Twigg Co must pay the plaintiffs’ costs of these proceedings, insofar as they relate to the claims brought against Max and Twigg Co, on the ordinary basis, as agreed as assessed.

Delinquency in connection with the litigation

6. It was not in dispute between the parties that Max and Twigg Co ought to pay the plaintiffs’ costs in relation to the plaintiffs’ claims against Max and Twigg Co. What was disputed was whether any costs order should be on the ordinary basis or the indemnity basis.

7. This Court should only depart from the general rule that costs are assessed on the ordinary basis (Uniform Civil Procedure Rules 2005 (NSW) r 42.2) if the party against whom costs are sought has engaged in conduct that is “plainly unreasonable” or involves some “relevant delinquency”: Dunstan v Rickwood (No 2) [2007] NSWCA 266 at [44] (McColl JA, Beazley JA, as her Excellency then was, and Ipp JA agreeing); Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009 at [44] (Ward CJ In Eq, as the President then was).

8. The impugned conduct must be connected with the proceedings and related to the way in which they were conducted. It is insufficient for the party, against whom a costs order is sought, to have merely acted in deplorable conduct in the subject matter of the litigation: Mead v Watson [2005] NSWCA 133 at [9] (Sheller, Ipp and Tobias JJA).

9. The plaintiffs submitted that the relevant delinquency in the present case was Max and Twigg Co’s failure to disclose that the bonds had been transferred to Max. However, as Max and Twigg Co submitted, that delinquency did not occur “in the conduct of [these] proceedings”: Harrison v Schipp [2001] NSWCA 13 at [133]-[136] (Giles JA, Handley JA agreeing). It occurred in the conduct of the previous proceedings between the plaintiffs and Max (and entities that he controlled): see Judgment at [120]-[135].

10. I consider that there was no “relevant delinquency” on Max and Twigg Co’s part which can justify an award of indemnity costs. It was not unreasonable for Max and Twigg Co to have defended these proceedings, given the Court’s finding that Max was not primarily liable for breach of trust and the findings that the plaintiffs’ accessorial liability claims must fail: Judgment at [83], [92], [96], [106].

Calderbank offer

11. In the alternative, the plaintiffs submitted that Max and Twigg Co should pay costs on an indemnity basis from 3 February 2025. On that date, the plaintiffs offered a “proposed course” for the parties to jointly pursue, as set out in an email entitled “without prejudice save as to costs”. The offer did not reference Calderbank v Calderbank [1975] 3 All ER 333, nor the reasons why it ought to be accepted within less than two hours, being the timeframe offered.

12. The terms included that the plaintiffs would accept payment of $200,000 (with the parties to bear their own costs) in exchange for Max “and all of his companies” entering into a deed of settlement with the plaintiffs “for all causes of action whether known or unknown with the intent that there is no further litigation [or] claim over any matter”.

13. Max later declined to sign the proposed settlement deed on the basis that the releases sought were “far too broad and not agreed”.

14. An unaccepted Calderbank offer is merely a relevant consideration in the exercise of the costs discretion. Assuming in the plaintiffs’ favour that their offer was a Calderbank offer, it would still be necessary for the plaintiffs to persuade the Court that Max’s refusal to execute the deed was unreasonable in all the circumstances.

15. The deed purported to provide for releases going beyond the subject matter of these proceedings and extended to entities that were not parties to these proceedings. In those circumstances, Max’s refusal to sign the proposed deed was not unreasonable: see eg Della Franca v Lorenzato [2022] NSWCA 53 at [47] (Brereton JA, Basten JA agreeing).

Scope of the costs order

16. In these proceedings, the plaintiffs’ claim against the first to third defendants, Pitcher Partners, was settled for a payment of $25 million. I approved the settlement in relation to Diane, who is represented by a tutor: Twigg by her tutor Elizabeth Flintoft v Pitcher Partners Holdings Pty Ltd (No 6) [2025] NSWSC 77. Orders were entered on 18 March 2025 providing that Pitcher Partners was to “to pay the plaintiffs’ costs of the proceedings against the first to third defendants as agreed or assessed”.

17. I consequently accept that the costs order made against Max and Twigg Co should be confined to the plaintiffs’ costs of these proceedings insofar as they relate to the claims brought against Max and Twigg Co.

Orders

18. For these reasons, the Court orders that the fourth and fifth defendants are to pay the plaintiffs' costs of the proceedings, insofar as they relate to the claims brought against the fourth and fifth defendants, on the ordinary basis, as agreed or assessed.

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