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[2022] FCA 269
Federal Court of Australia
2022-03-24
Halley J
Original judgment source is linked above.
Counsel for the Applicant: Mr S Burchett
Solicitor for the Applicant: Jason Li Lawyers
Counsel for the First Respondent: The First Respondent did not provide written submissions
Solicitor for the Second Respondent: Drayton Sher Lawyers
Counsel for the Third Respondent: Ms S Mirzabegian SC with Mr K Sharma
Solicitor for the Third Respondent: Corrs Chambers Westgarth
Counsel for the Fourth Respondent: The Fourth Respondent did not provide written submissions
Counsel for the Fifth Respondent: The Fifth Respondent did not provide written submissions
SAMUAL PISCOPO AS TRUSTEE OF THE BANKRUPT ESTATE OF MEI RU WONG Second Respondent
BANKWEST A DIVISION OF COMMONWEALTH BANK OF AUSTRALIA LTD Third Respondent ECHOICE HOME LOANS PTY LTD Fourth Respondent EMMA KAMENSKY Fifth Respondent
order made by: HALLEY J DATE OF ORDER: 24 March 2022
Introduction 1 On 8 February 2022 I made a declaration that a binding and enforceable agreement (Agreement) had been made to settle these proceedings as between the applicant (Mr Wong) and the second respondent (Samuel Piscopo, as trustee of the bankrupt estate of the first respondent) (Trustee). I otherwise dismissed the interlocutory application of the Trustee dated 24 August 2022 (interlocutory application): see Wong v Wong [2022] FCA 78 (Wong). 2 I made further orders on 8 February 2022 providing that, absent a consent position, each party should by no later than 23 February 2022 file and serve a copy of their proposed orders as to costs in respect of the interlocutory application, together with an outline of written submissions in support not exceeding two pages in length, and that costs orders would then be determined on the papers and without a further oral hearing. 3 In addition to seeking the declaration, the interlocutory application had also sought an order that Mr Wong do all such acts and execute all such documents as may be necessary to give effect to the Agreement, including entering into a Deed within seven days of the order being made (Executory Order). 4 The interlocutory application was opposed by Mr Wong. The third respondent (Bankwest) did not wish to be heard on whether the Agreement was binding and enforceable, but did want to be heard on relief and opposed the making of the Executory Order. The fourth and fifth respondents did not wish to be heard on the interlocutory application. 5 The interlocutory application was heard on 6 October 2021. During the course of the hearing Mr Glasson, who appeared for the Trustee, indicated that the Trustee no longer sought the Executory Order. In order to provide Bankwest with an opportunity to address the significance of this change in positon on the question of relief in a more structured manner, at the conclusion of the hearing I made orders for supplementary written submissions to be filed by Bankwest and the Trustee. The matter was listed for a case management hearing on 15 December 2021, but it transpired that substantive submissions were also made on that day with respect to the question of relief by Mr Glasson for the Trustee and Ms Mirzabegian SC for Bankwest. 6 The parties have now filed proposed orders and written submissions on costs. 7 Mr Wong submits that in respect of the costs up to and including 6 October 2021 (and taking judgment), each party should bear its own costs or alternatively, that half of the Trustee's costs be paid equally by Mr Wong and Bankwest, as agreed or assessed on a party-party basis. In respect of the costs following 6 October 2021 up until judgment, Mr Wong submits that there should be no order as to costs affecting Mr Wong, with the costs to be borne by the Trustee and Bankwest as the Court determines. 8 The Trustee submits that Mr Wong and Bankwest should pay the Trustee's costs of the application up to and including the hearing on 6 October 2021 on the ordinary basis as agreed or assessed. He submits that Bankwest should pay the Trustee's costs of the application from 7 October 2021 on an indemnity basis, as agreed or assessed. 9 Bankwest submits that as between Bankwest and the Trustee, each party should pay its own costs. Otherwise, Mr Wong should pay the Trustee's costs. Alternatively it submits that if the Court considers it appropriate that Bankwest pay a portion of the Trustee's costs, then it should be ordered to pay no more than 20% of the Trustee's costs as agreed or assessed, being the estimated proportion of time spent on the dispute in respect of relief. 10 I have concluded that the appropriate costs order is that Mr Wong pay 75% of the costs of the Trustee and that Bankwest pay 25% of the costs of the Trustee on the ordinary basis, as agreed or assessed.
Legal Principles 11 The Court has a broad discretionary power to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) (Act). The discretion must be exercised judicially, not arbitrarily or capriciously, having regard to the relevant principles and the justice of the case in all the circumstances and cannot be exercised on grounds unconnected with the litigation: Summers v Repatriation Commission (No 2) [2015] FCAFC 64 (Summers) at [14] (Kenny, Murphy and Beach JJ), citing Trade Practices Commission v Nicholas Enterprises Pty Ltd and Others (No 3) (1979) 42 FLR 213; [1979] FCA 143 (at 219 (Fisher J); InterPharma Pty Ltd v Hospira, Inc (No 4) [2018] FCA 45 at [8] (Kenny J). 12 In the ordinary course, in the absence of special circumstances justifying some other order, the general rule is that costs will be awarded to the successful party, that is, costs will follow the event: Summers at [14]; Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J, as his Honour then was); Vantage Holdings Pty Ltd v Huang (No 2) (2015) 232 FCR 556; [2015] FCA 185 at [12] (Collier J). 13 Rule 40.04(a) the Federal Court Rules 2011 (Cth) (Rules) provides that: If no order for costs is made on an interlocutory application or hearing, the costs of the application or hearing: (a) if an order is made in favour of any party - follow the event; or (b) if no order is made in favour of any party - are taken to be costs in the cause of the successful party to the proceeding. 14 Costs orders in favour of parties that have succeeded in obtaining orders on an interlocutory basis, consistently with the default positon, are commonly made in circumstances where a party has succeeded on a discrete issue, such as the determination of a separate question in advance of a final hearing, although each case will turn on its particular facts and circumstances: Taylor (liquidator), in the matter of Heading Contractors Pty Ltd (in liq) v Heading (No 2) [2021] FCA 925 at [18] (Charlesworth J). 15 Absent disqualifying conduct, the successful party will generally obtain a costs order in its favour even where it has not succeeded on all issues: Smith v Starke, in the matter of Action Paintball Games Pty Ltd (in liq) (No 3) [2016] FCA 40 (Smith) at [10] (Gleeson J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-8 (McHugh J) and 124 (Kirby J). 16 Where there are multiple issues in a case, the Court will generally not attempt to differentiate between the issues on which a party was successful and those on which it failed. It will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to separate issues upon which a party was successful or unsuccessful: Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [6] (Beazley, McColl and Basten JJA); Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 35 at [5]-[6] (French CJ, Kiefel J, as her Honour then was, Nettle and Gordon JJ); see also Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (No 2) [2017] FCAFC 110 (Greenwood, Besanko and Katzmann JJ). 17 An approach of delving into the details on an issue by issue basis tends to distract from the principal task of determining an entitlement to costs based on the end result of the litigation: Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393 at [64] (Katzmann J). 18 Where a litigant has succeeded only on a portion of its claim, it may be required to bear the expense of litigating the unsuccessful portion (or indeed to pay the other party's costs of that portion): Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at 48,136 (Toohey J); Commissioner of Taxation v Bosanac (No 2) [2022] FCAFC 5 at [16] (Kenny, Davies and Thawley JJ). A successful party may be deprived of costs where it has been only partially successful in obtaining the relief sought: Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370; [2015] FCAFC 128 at [11] (Dowsett, Middleton and Gilmour JJ); Faraday v Rappaport [2007] NSWSC 253 at [28]-[31] (White J). 19 A court, however, should not too readily disallow costs simply because a party has failed upon an issue, unless it be "quite a separate and distinct issue from the issues in respect of which it succeeded", or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: Smith at [11] (Gleeson J), citing Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54]. 20 The Act provides an express power to enable the Court to order that costs awarded against a party are to be assessed on an indemnity basis: s 43(3)(g). In the usual course the discretion to award costs would be exercised by an order that costs follow the event and that such costs be determined on a party and party basis, as agreed or taxed: r 40.01 of the Rules. Although the categories of cases in which indemnity costs may be ordered are not closed, there must be some special or unusual features to be present for a court to depart from the usual practice and make an order for a party to pay costs on an indemnity basis: Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 2) [2007] FCA 903 at [32] (Besanko J). 21 The purpose of an indemnity costs order is to compensate a party in full for their costs when the Court takes the view that it was unreasonable for the party against whom the order was made to have caused the other party to incur costs: Alhalek v Quintiliani trading as Kells Lawyers (No 3) [2021] FCAFC 150 at [10] (Katzmann, Derrington and Anastassiou JJ), citing Hamod v New South Wales (2002) 188 ALR 659; [2002] FCAFC 97 at [20] (Gray J, Carr and Goldberg JJ agreeing); Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [3]-[5] (Jagot, Yates and Murphy JJ).
Mr Wong's submissions 22 Mr Wong advances the following submissions in support of his contention that each party should bear its own costs or alternatively, that half of the Trustee's costs be paid equally by Mr Wong and Bankwest in respect of the costs up to and including the hearing on 6 October 2021 and that there should be no order as to costs affecting Mr Wong after that date. 23 First, Mr Wong submits that at the hearing on 6 October 2021, the Trustee did not propose any means to give effect to the Agreement in the absence of the Executory Order. The Trustee's explanation at the hearing that he did not consider it strictly necessary to seek the Executory Order was an implicit threat of a further application by the Trustee, and highlighted the extent of the costs wasted on the interlocutory application. The decision not to proceed with the Executory Order amounted to a capitulation by the Trustee, and that prayer for relief was otherwise dismissed by the Court. 24 Second, Mr Wong submits that it was the Deed which prompted the dispute as to the Agreement. The Court found that Mr Wong was entitled to reject the Deed's transfer mechanism, as proposed by the Trustee with its additional transactional costs, citing Wong at [72]. 25 Third, Mr Wong submits that the issues requiring further submissions and a contested hearing between the Trustee and Bankwest did not involve Mr Wong. He submits that they were limited to the discretion to grant the declaratory relief sought, having regard to the alleged prejudice to Bankwest, and its utility in the absence of executory orders or consent from Bankwest to the execution of the Agreement. 26 Fourth, Mr Wong submits that although the Court found that there was sufficient legal utility to make the declaration, the Court noted (at [107] of Wong) that it might well reach a different conclusion on prejudice and detriment if an order for specific performance was sought. He submits that the practical utility of the interlocutory application (and the costs incurred in relation to it) is not apparent given the absence of consent from Bankwest (especially as to the condition of a sale "as soon as possible under the instruction of" Mr Wong and the alleged mortgage default and expiration of a s 57(2)(b) notice). 27 Mr Wong submits that the Trustee invited or materially contributed to the dispute having to be determined by the Court because of his conduct: (a) leading to the making of the Agreement, including alleged "misconduct", and conduct "bound to cause disputation, though not accepted to be relevant to whether the Agreement was binding", citing Wong at [81]; (b) "in his acceptance of the offer restating its terms to provide for himself a sum certain, rather than simply and clearly accepting the offer in its terms"; and (c) proffering a form of deed, which Mr Wong was entitled to reject, citing Wong at [72].
The Trustee's submissions 28 The Trustee submits that Mr Wong should pay the Trustee's costs of the application up to and including the hearing on 6 October 2021 as "there can be no doubt that Mr Wong was entirely unsuccessful in his opposition to the application", and "having submitted that there was no binding agreement for numerous reasons, including entirely baseless assertions of misconduct by [the Trustee]", citing Wong at [40]-[50] and [58]-[81]. 29 The Trustee made the following submissions in support of his contention that Bankwest should pay his costs from 7 October 2021 on an indemnity basis. 30 First, the Trustee submits there can be no doubt that the time spent and costs incurred on the application were significantly increased by Bankwest's involvement at the initial hearing on 6 October 2021 and the further hearing on 15 December 2021 (and preceding written submissions), which solely concerned Bankwest's opposition. 31 Second, the Trustee submits that at all times, including at the first hearing on 6 October 2021, Bankwest relied on what it called "prejudice" or "detriment" that it would suffer due to the "premature" fixing of the return of the bankrupt estate of the first respondent (Ms Wong) at $220,000, and that the settlement would "effectively convert Bankwest's interests from a secured creditor to an unsecured creditor" of Ms Wong, compelling it to prove in Ms Wong's bankrupt estate before Bankwest could properly formulate or have determined any cross-claim against Ms Wong and/or the Trustee. The Trustee argues that this submission was rejected, citing Wong at [110]. He submits that it was "plain beyond doubt" that the Agreement would not have any effect on Bankwest's security, which "instead turns on issues in the main proceedings as between Mr Wong and Bankwest". 32 Third, the Trustee submits that, despite the above alleged prejudice and detriment and the submission that Bankwest needed more time to formulate a cross-claim, Bankwest filed its cross-claim on 9 December 2021. The cross-claim did not include any claim against Ms Wong nor the Trustee, but instead sought full indemnity against the broker fourth respondent (eChoice). The existence of the documents that might reduce or eliminate Bankwest's security were known to Bankwest "long before" 6 October 2021, and the proceedings had been commenced by Mr Wong more than two months earlier on 7 July 2021. 33 Fourth, the Trustee submits that any claim against eChoice was not dependant on receipt of further particulars from Mr Wong. Despite this, after the hearing on 6 October 2021, Bankwest maintained its previous submissions regarding "prejudice" although it had accepted at the hearing on 15 December 2021 that the force of its "prejudice" submission had been reduced (although not eliminated) by the cross-claim. Bankwest then refused to consent to the Trustee bringing that material fact to the Court's attention. The Trustee submits that this constitutes unreasonable conduct, justifying indemnity costs, citing MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 at 240-1 (Lindgren J). 34 Fifth, if Bankwest's cross-claim for indemnity against eChoice is successful then it will have suffered no loss whatsoever, and none connected to the Agreement between Mr Wong and the Trustee, and nor would it then be a creditor of Ms Wong's estate at all. 35 Sixth, the Trustee submits that the Executory Order originally sought by the Trustee in the interlocutory application merely required Mr Wong to execute a document in the event that a binding contract was found to exist. The execution of that document would not have converted any hypothetical prejudice into real prejudice if that order had been made. He submits that the order would not have any effect on Bankwest's security nor its cross-claim against eChoice, and there is no suggestion that after the sale of the property there would not be enough proceeds to pay Bankwest in full if the security is not set aside. 36 The Trustee submits that the result would have been the same had he pressed the Executory Order because the grounds relied on by Bankwest to resist the Executory Order were the same grounds it relied on to resist the making of the declaration, and Bankwest failed in that regard because: (a) it did not have standing to oppose the making of the declaration (citing Wong at [104]); and (b) it had not suffered any or sufficient (hypothetical) prejudice (citing Wong at [105]). 37 Seventh, the $220,000 was to be paid from Mr Wong's share of the net proceeds of the sale; that is, after payment of the mortgage debt in the normal course. That Mr Wong seeks to dispute the mortgage debt is a matter between Bankwest and Mr Wong, not the Trustee, in the absence of Bankwest filing a cross-claim against Ms Wong. 38 Finally, the Trustee submits that although he did not press for the Executory Order, the correspondence shows that he tried to provide reasonable solutions to allay any concerns of Bankwest in letters that he sent on 23 September 2021 and 5 October 2021. He submits that these letters contained offers that were ignored by Bankwest to preserve the balance of the $220,000 and withhold distributing the balance to creditors for 18 months.
Bankwest's submissions 39 Bankwest submits that its contentions that, as between the Trustee and Bankwest, each party should pay its own costs and that Mr Wong should otherwise pay the Trustee's costs are advanced in the context of the two considerations expressly identified in Wong bearing on the question of costs (Wong at [113]): first, the late withdrawal of the application for the Executory Order; and second, the different positions taken by the parties as to the substantive question of whether there was a binding and enforceable agreement and as to the relief that should be granted. 40 In light of those considerations, Bankwest makes the following submissions. 41 First, Bankwest submits that Mr Wong principally resisted the substantive finding that a binding and enforceable agreement had been entered into (Substantive Dispute), while Bankwest sought to be heard on the exercise of the discretion to grant relief in light of potential prejudice to it (Relief Dispute). It submits that the Trustee succeeded against Mr Wong in the Substantive Dispute, but did not have complete success in the Relief Dispute. 42 Second, Bankwest submits that it incurred costs between the time of the filing of the interlocutory application and the hearing on 6 October 2021 by its solicitors engaging in correspondence, preparing a solicitor's affidavit, filing submissions resisting the Executory Order and preparing for hearing. During this time the Trustee did not indicate that the Executory Order would not be sought, and the Trustee's late change of position meant that the parties were required to make supplementary submissions. 43 Third, Bankwest submits that the Trustee's costs in respect of the Relief Dispute comprised: (a) three page submissions in response to Bankwest's submission filed by the Trustee before the hearing; (b) approximately one-third of the hearing on 6 October 2021, which occupied the argument on relief (with the brief additional argument on 15 December 2021 taking place at a pre-existing listing for a case management hearing at which the parties were required to appear in any event); and (c) five page supplementary submissions on whether a declaration only should be made. 44 Fourth, Bankwest submits that the declaration sought was made but the interlocutory application was "otherwise" dismissed. It accepts that it was unsuccessful on the question of whether a declaration should be made and it should be liable for the Trustee's costs of the supplementary submissions on that question. However, due to the Trustee's late change of position, Bankwest should not be required to incur the costs attending its written submissions and argument in respect of the Executory Order and the Trustee should be liable for those costs. 45 Fifth, Bankwest submits in the alternative that if the Court considers it appropriate that Bankwest pay a portion of the Trustee's costs, it should be ordered to pay no more than 20% of the Trustee's costs, being its estimate of the proportion of time spent on the Relief Dispute.
Consideration 46 It is convenient to adopt the taxonomy used by Bankwest of the "Substantive Dispute" and the "Relief Dispute" for the purpose of addressing the question of costs with respect to the hearing and determination of the interlocutory application. 47 The Trustee was wholly successful on the Substantive Dispute and the ground that it pressed with respect to the Relief Dispute. In the usual course costs would therefore simply follow the event and the Trustee would be entitled to its costs. Any costs orders, however, in the present case need to have regard to the potential implications on costs of the late withdrawal of the application for the Executory Order, and the different positions taken by the parties to the substantive question of whether there was a binding and enforceable agreement and the relief that should be granted. 48 In the light of these two considerations and the competing contentions on costs advanced by Mr Wong, the Trustee and Bankwest, I have concluded that having regard to the relevant principles and the justice of the case the appropriate costs order is that Mr Wong should pay 75% of the Trustee's costs of the interlocutory application and Bankwest should pay 25% of the Trustee's costs of the interlocutory application, on the usual basis. I have reached that conclusion for the following reasons. 49 First, although the Substantive Dispute and the Relief Dispute are conceptually distinct, they were factually interrelated and any attempt to allocate costs incurred in respect of each dispute in the period leading up the conclusion of the hearing on 6 October 2021 would likely be problematic and lead to further disputes. The interrelationship was highlighted by the position taken by Bankwest that it did not wish to be heard on whether the Agreement was binding and enforceable but at the same time wished to oppose the making of any declaration to that effect. 50 Second, a costs order that Mr Wong pay the Trustee's costs up to the conclusion of the 6 October 2021 hearing and Bankwest pay the Trustee's costs from 7 October 2021 would not take into account the costs incurred by the Trustee in response to the position taken by Bankwest on the Relief Dispute prior to 7 October 2021. 51 Third, any costs order that Mr Wong and Bankwest pay the costs of the Trustee in equal proportions up to the conclusion of the 6 October 2021 hearing would not fairly reflect the comparative significance of the Substantive Dispute compared with the Relief Dispute. 52 Fourth, I do not accept that the alleged conduct of the Trustee relied upon by Mr Wong provided any basis for the Trustee to be deprived of his costs. The allegations of misconduct were not substantiated. Further, the conduct of the Trustee in providing for a "sum certain" and providing a draft deed for consideration was not conduct that was "bound to cause disputation" and "invited or materially contributed" to the dispute having to be determined by the Court. In the context of a commercial resolution of a dispute it was conduct that was entirely unexceptional. 53 Fifth, given the Executory Order was not pressed, the determination of the interlocutory application was solely concerned with the questions of whether the Agreement was binding and enforceable and whether a declaration to that effect should be made. The decision not to press for the Executory Order does not carry with it the necessary implications of notional success by the Trustee, success by Mr Wong and Bankwest or partial success by Mr Wong. The issue of whether an order in the form or to the effect of the Executory Order should be made has simply not been determined. 54 Sixth, the decision not to press for the Executory Order led to a further exchange of submissions after the hearing on 6 October 2021 in order to ensure that the implications of this decision could be fully considered by Bankwest and ultimately the substantive position advanced by Bankwest was not materially different to the contentions already advanced in opposition to the Executory Order. 55 I accept that any allocation of costs between unsuccessful parties is necessarily impressionistic and imprecise, other than in the most straightforward of cases. Nevertheless, it can generally be expected to lead to a more just result than an attempt to undertake some form of artificial empirical analysis with insufficient or incomplete data. In the current context, having regard to the matters outlined above, I have determined that a 75%/25% allocation between Mr Wong and Bankwest, rather than the fall back 80%/20% allocation advanced by Bankwest, is more appropriate and necessary to do justice between the parties. 56 I am not satisfied, however, that the Trustee has established that there are sufficient special or unusual features present in this case for the Court to depart from its usual practice and to make an order for Bankwest to pay costs on an indemnity basis. 57 First, although the prejudice or detriment identified by Bankwest was contingent on Mr Wong succeeding against Bankwest but failing against the Trustee, it was nevertheless potential substantive prejudice and detriment. 58 Second, it does not follow that the standing of Bankwest and the question of hypothetical prejudice would necessarily have been the same if the Executory Order had been pressed by the Trustee. In particular, the practical utility of the Executory Order given the current security interests held by Bankwest may well have been a relevant consideration in determining whether the order should be made. Given the decision not to press for the Executory Order, these issues were simply not addressed. 59 Third, the decision not to cross claim against Ms Wong or the Trustee and rely only on a cross claim against eChoice might well reduce the prospect of prejudice or detriment if Mr Wong succeeds in setting aside Bankwest's securities, but does not eliminate the potential for such prejudice or detriment. Further, the decision not to cross claim against Ms Wong or the Trustee does not carry with it any necessary implication that any further opposition to the making of the declaration sought by the Trustee was unreasonable. 60 Fourth, the "solutions" offered by the Trustee in his letters of 22 September 2021 and 5 October 2021 were of limited assistance to Bankwest. Any delay in distributions to creditors would only provide a temporary solution and the amount of the $220,000 available to unsecured creditors would only be further diminished by the costs incurred by the Trustee in administrating the estate of Ms Wong, including any costs exposure in the present proceedings, given the priority afforded by s 109 of the Bankruptcy Act 1966 (Cth). 61 Fifth, it was perhaps regrettable that Bankwest objected on 10 December 2021 to the proposed specific notification by the Trustee to the Court of the decision by Bankwest to cross claim against eChoice but the filing of the cross claim on that date otherwise brought the Court's attention to the issue, and the implications of the decision to seek an indemnity from eChoice on the alleged potential detriment of Bankwest were fully ventilated at the hearing on 15 December 2021. The refusal had no material impact on the determination of the interlocutory application.
Costs of the contest on costs 62 By a without prejudice letter, save as to costs, dated 17 February 2022, Mr Wong offered to submit to a costs order that half of the Trustee's costs of the interlocutory application up to and including 6 October 2021, as agreed or assessed on a party-party basis, be paid equally by him and Bankwest and the Trustee's costs of the interlocutory application from 6 October 2021 be paid by Bankwest, as agreed or assessed on a party-party basis. 63 Mr Wong submits that the failure of the Trustee to accept the offer provides a basis for him to be paid his costs of the contest on the issue of costs. 64 Given that the costs order that I propose to make is materially more favourable to the Trustee than the offer made by Mr Wong in his letter dated 17 February 2022, the letter does not provide any basis for Mr Wong to recover his costs of the contest on the issue of costs.
Disposition 65 For the reasons outlined above, Mr Wong is to pay 75% of the costs of the Trustee, and Bankwest is to pay 25% of the costs of the Trustee, of and incidental to the hearing and determination of the interlocutory application on a party-party basis. There will be no order as to costs with respect to the contest on costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.
Wong
Wong
(2015) 327 ALR 192
(1998) 193 CLR 72
(2015) 236 FCR 370
(2001) 115 FCR 229
(2015) 232 FCR 556
(1979) 42 FLR 213
(2002) 188 ALR 659
(1996) 70 FCR 236