In the recent case of Trouton v Trouton [2025] QCA 128 (18 July 2025) the Court of Appeal allowed an appeal in respect of a non-party cost order that had been made against the daughter of the plaintiff mother in a matter involving a claim of fraud relating to property transfer. In the underlying proceeding indemnity costs had been ordered against the plaintiff mother and upon application of the defendants such costs were sought and ordered as against one of the daughters of the mother, being a sister to the defendants.[1]
After considering recent developments relating to non-party cost orders, the Court of Appeal (comprising Mullins P and Flannagan and Brown JJA) said, inter alia:
The reasons
[24] There is no challenge to the primary judge’s determination (at [21] of the reasons) that the findings in the original decision and the original costs decision could be used for the non-party application, subject to relevance, context and any limitations apparent from the nature and content of the findings or evidence. In the original decision, the trial judge accepted (at [133]) the evidence of the respondents as credible and reliable and also accepted the evidence of Deanne. The trial judge found (at [134] of the original decision) that the appellant’s evidence was neither reliable nor credible in respect of the key areas relevant to the issues in dispute and found her account of how she first realised that the Harbut Street property had been transferred to the respondents was implausible.
[25] The question to be decided on the non-party application was whether the Court’s discretionary power to award costs against a non-party should be exercised to make a costs order against the appellant. The respondents submitted that the appellant was within that class of non-party described as “the person who has caused the action” referred to in Symphony Group Plc v Hodgson[1994] QB 179 at 191-192. The primary judge recognised (at [33] of the reasons) that all the circumstances had to be considered to see whether it was just and equitable that a non-party pay the costs of a party to the litigation and that the factors, criteria and the “classes” identified were not to be applied inflexibly. The primary judge then stated (at [34]) it was helpful to start with a consideration of the three criteria identified in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-193 by Mason CJ and Deane J (with whom Gaudron J agreed):
“For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.”
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Grounds of appeal
[38] The grounds of appeal are lengthy but it is not necessary to set them out in full. Ground 1 is to the effect that the primary judge erred in exercising the discretion to order the appellant to pay the respondents’ costs of the mother’s claim by failing to take into account, or adequately take into account by giving sufficient weight to factors that are then set out, or by making findings as relevant or giving excessive weight to other matters that are then set out, or by making other findings that are characterised in the grounds as erroneous.
[39] One of the factors relied upon by the appellant to assert an error in the primary judge’s discretion to award costs against the appellant that was the focus of the submissions on the hearing of the appeal was paragraph (a) of ground 1:
“failing to take into account, or adequately take into account by giving insufficient weight to:
(i) the lack of any warning by the respondents that an application for non-party costs would be made against the appellant;
(ii) the conduct of the respondents in connection with their not warning the appellant that an application for non-party costs would be made against her; and
(iii) the likely effect that such a warning would have had on the appellant’s conduct if one had been given;”
The jurisdiction to award costs against a non-party
[40] There was no issue between the parties on the appeal that the Supreme Court has jurisdiction to award costs against the appellant as a non-party. The passage in Knight (at 192-193) set out above had been prefaced by the observations (at 192) that the prima facie general principle was that an order for costs is only made against a party to the litigation but “there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party”. The ultimate test applied in Knight (at 193) was whether it was in the interests of justice to make the costs order against the non-party where the circumstances fell within the category of case identified at 192-193. Mason CJ and Deane J had earlier explained (at 185) that “the court will and should develop principles governing the exercise of the discretion which will ensure that the jurisdiction is not exercised in such a way as to give rise to abuse”. A survey undertaken by Mason CJ and Deane J of cases where costs had been awarded against non-parties attracted the observation (at 188):
“The cases awarding costs against non-parties are more readily explicable on the footing that there was no absence of jurisdiction to order costs against non-parties in the strict sense and that the jurisdiction could be exercised against persons who were considered to be the ‘real parties’ to the litigation.”
[41] Mason CJ and Deane J referred in Knight (at 191) to the decision of the House of Lords in Aiden Shipping Ltd v Interbulk Ltd[1986] AC 965 as providing support for the conclusion they had reached about the jurisdiction to order payment of costs against a non-party. Subsequent to Aiden, the Court of Appeal in England in Symphony (at 191-192) summarised the categories of cases in which courts had been prepared to order a non-party to pay the costs of proceedings. It was observed (at 192) by Balcombe LJ (with whom Staughton and Waite LJJ agreed) that those categories were “neither rigid nor closed” and indicated “the sorts of connection” which had led courts to entertain a claim for costs against a non-party. Balcombe LJ then proceeded (at 192-193) to set out material considerations to be taken into account by way of guidance as to when a costs order should be made against a non-party. Relevant to this appeal were the observations that it would be “even more exceptional for an order for the payment of costs to be made against a non-party, where the applicant has a cause of action against the non-party and could have joined him as a party to the original proceedings” which was then followed by this consideration:
“Even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him. At the very least this will give the non-party an opportunity to apply to be joined as a party to the action …”
[42] The only question before the High Court in Knight was whether the Supreme Court had jurisdiction to make an order for costs against the receivers and managers of companies which were the unsuccessful parties in proceedings where the receivers themselves were not parties to those proceedings. Orders had been made against the receivers at first instance on the ground that the receivers had instituted, maintained and defended proceedings in the names of the relevant companies. The receivers’ appeals to the Full Court against the costs orders were dismissed. The appeal to the High Court on the existence of jurisdiction to order costs against the non-parties was also dismissed. No consideration was therefore given by the High Court in Knight to the relevance in the exercise of the discretion to order costs against a non-party of whether notice of intention to seek that order had been given to the non-party when that step was in contemplation.
[43] The constraints on the exercise of the jurisdiction to award costs against a non-party recognised in Knight have been frequently applied. The criteria listed by Mason CJ and Deane J in the passage in Knight (at 192-193) are apt for circumstances that are akin to those that resulted in the costs orders against the receivers in that case. There has never been a departure in the authorities subsequent to Knight from the ultimate test of what the interests of justice require. The criteria applied in a particular case to ascertain whether the interests of justice require that a costs order be made against a non-party depend on the circumstances of the case. As observed by the Full Court of the Federal Court in Kebaro at [69], “this is a fact-specific jurisdiction”. As a result, there are many authorities where more general statements have been made about the circumstances that may give rise to the exercise of the jurisdiction to award costs against a non-party but those statements must be considered in the context of the nature of the proceeding for which costs are sought against a non-party, the facts of the particular case, and the factors relevant to the application of the ultimate test in that case.
[44] The Full Court in Vestris v Cashman(1998) 72 SASR 449 dismissed an appeal from a District Court judge’s refusal to order costs against the non-parties who were the directors and shareholders of the company and beneficiaries of the trust of which the company was trustee and financed the company’s unsuccessful civil action (when the company was insolvent at all material times) on the basis there was no jurisdiction to make such an order. Vestris had sold a business to the company and the company’s claim was for damages in respect of an alleged misrepresentation relating to the sale of the business. No interlocutory application had been made by Vestris for an order for security for costs. For about a year prior to the dismissal of the company’s claim, Vestris knew of the company’s parlous financial situation. Two of the members of the Court made observations about the requirement for notice of the intention to make a claim for costs against the non-party, if there had been jurisdiction, and the third member of the Court (Doyle CJ) agreed with both judgments in that regard. Olsson J stated at 458:
“… common fairness dictates that a defendant seeking to place a non-party at risk of an order for costs must, either by bringing a timely application for security or, alternatively, at least by letter advising the defendant’s intention, place the non-party on notice of that risk, so that the non-party will not, in effect, be lulled into a false sense of security and ambushed, when it is too late for it to reflect as contemplated in Yates Property Corporation Pty Ltd v Bolan[d] …”
The reference to Yates was to a statement by Branson J in that case reported at [1997] FCA 760; (1997) 147 ALR 685 at 695 to the effect that if an application for security for costs against the plaintiff company was brought, those who stood behind the company may then decide as to whether to make the financial commitment necessary to allow the litigation to proceed. Vestris’ appeal challenged the District Court judge’s focus on the failure to take some timely earlier action in relation to protecting itself from the inability of the company to meet a costs order as the dominant consideration for the District Court judge’s decision. Olsson J concluded (at 459) that the District Court judge had not ignored other facts in exercising the discretion but that “in the final analysis, the question of a failure to raise the issue of a potential personal liability by the respondents for costs, in a timely manner, clearly became the dominant factor in the events which had transpired”.
[45] Lander J in Vestris referred (at 467-468) to Symphony and that in exercising the discretion to award costs against a non-party regard would be had to whether the non-party had any warning that an application for costs against that party would be made. Lander J observed (at 472) that if an application for security for costs had been bound to fail “then the defendant would advise the plaintiff and those the defendant knows to be backing the plaintiff and interested in the litigation that in the event that the plaintiff’s action fails they would be seeking an order for costs”.
[46] Branson J’s decision in Yates was upheld on appeal in Yates v Boland[2000] FCA 1895. The company Yates Property Corporation Pty Ltd had unsuccessfully sued its lawyers for professional negligence. Mr Yates was one of two directors and a majority shareholder and he gave all significant instructions on behalf of the company concerning the proceeding. The company did not have the means to pay the respondents’ costs. Branson J had ordered that Mr Yates was jointly and severally liable with the company to pay the indemnity costs of the respondents. Branson J found that the respondents did not know of the parlous state of the company’s finances until after the end of the trial. One of the grounds of appeal by Mr Yates was that he was not warned that he may be made liable for costs and the failure to warn was a material consideration to which Branson J failed to have regard and the discretion thereby miscarried. On the basis that the respondents were not in a position to warn the appellant during the trial as they were unaware of the state of the company’s finances, the Court (at [39]) held that the failure to give a warning which was a material consideration in Symphony and Vestris was not a material consideration in the subject case. The Court stated (at [34]):
“The discussion concerning Symphony and Vestris in pars 18 to 32 of these reasons shows that the question of warning has been treated as a material consideration in certain circumstances. Whether such a requirement arises in a particular case depends on the facts and circumstances of the individual case. The necessity to warn a non-party of an intention to claim costs is not a principle applicable in every case in which costs are sought against a non-party. Rather it may be a material consideration depending on the situation disclosed in the case under consideration.”
[47] In Gore v Justice Corporation Pty Ltd(2002) 119 FCR 429, a mining company (Montague) had succeeded in proving the liability of the Gore parties (Gore) for professional negligence. Montague entered into a litigation agreement with Justice Corporation Pty Ltd (the respondent) for financial assistance to Montague in litigating the assessment of its damages against Gore. In return, the respondent was to receive, effectively, eight per cent of any award of damages that Montague might obtain. The existence of the litigation agreement was disclosed by Montague’s solicitors to the solicitors for Gore soon after it was made. The recitals recorded that the respondent had agreed to pay necessary litigation costs in relation to the claim on the terms set out in the litigation agreement. It was a provision of the litigation agreement that Montague was to retain control of the litigation. When Gore’s request that the respondent provide security for Gore’s costs of the assessment of quantum was refused, Gore applied unsuccessfully to the Court for an order for security for those costs.
[48] Montague obtained judgment on the assessment against Gore in an amount that was less than an offer to settle made by Gore soon after the decision on the question of liability. The costs order in favour of Montague was therefore limited to the costs incurred up to the date when Montague rejected Gore’s offer to settle but there was no order that Montague pay any of Gore’s costs. Both Montague and Gore appealed against the quantum and costs decision. The appeal by Gore was successful, Montague was awarded nominal damages of only $20, and Montague was ordered to pay Gore’s costs from the date that Montague had rejected the settlement offer. Three days before the hearing of the appeal Montague and the respondent had executed a new agreement which was called the loan agreement that purported to assert that the litigation agreement was “void ab initio and of no effect”. As a result of the parties making the litigation agreement void, Montague and the respondent then agreed that the moneys provided by the respondent to Montague had been lent to Montague to prosecute the litigation. After the publication of the Full Court’s reasons, Gore called upon the respondent to pay their costs because of the provision in the litigation agreement that the respondent would pay Montague’s costs and Gore’s costs. It was then that Montague and the respondent informed Gore that the litigation agreement had been cancelled and replaced with the loan agreement.
[49] When the respondent refused to pay Gore’s costs pursuant to the order, Gore applied for an order that the respondent (as a non-party) pay their costs. That application was unsuccessful and that resulted in the appeal in Gore. The Court in Gore referred (at [46]-[47]) to Symphony and Vestris as cases that suggest an applicant for a costs order against a non-party may be unsuccessful if no prior notice of an intention to claim costs has been given to the non-party. The Court noted (at [48]) that it was not necessary for it to express a view on the need to give notice in the terms suggested by Olsson J in Vestris, as Gore had put the respondent on notice when it unsuccessfully sought security from it for Gore’s costs and Montague’s solicitors had provided Gore with a copy of the litigation agreement between Montague and the respondent from which Gore would have read of the respondent’s commitment to Montague to pay any costs that Montague might be ordered to pay to Gore. The Court refused (at [63]) to allow the respondent to rely on the cancellation of the litigation agreement as it was reasonable to infer that Gore relied upon its content. The Court noted (at [64]) that the respondent had a direct financial interest in the outcome of the quantum assessment, even though it did not control the litigation. The Court concluded (at [64]) that in return for the chance of obtaining eight per cent of the judgment debt and recoupment of much of its outlay for costs, the respondent should be expected to incur the risk of a costs order in the event of Gore being the successful party. The appeal was allowed in part and the respondent was ordered to pay a specified portion of Gore’s costs.
[50] The non-party in Kebaro was unsuccessful in its appeal to the Full Court in showing error in the primary judge’s exercise of discretion to order the non-party to pay the costs of some of the respondents in the proceeding. It was complex litigation and the involvement of the non-party with the applicants in the proceeding was substantial, as found by the primary judge and summarised in Kebaro at [37]. The financier of the property that was the subject of the proceeding had entered into a deed with the non-party and some of the applicants to the proceeding and, relevantly, the parties to the deed recognised the potential for the respondents to seek security for the costs of the proceeding and potentially a non-party costs order against the financier should the proceeding fail. The non-party agreed to indemnify the financier in respect of any amount for which it was required either to give security or to pay costs to the respondents in the proceeding. One of the grounds of appeal (set out at [47]) was that the failure of the respondents to give notice of their intention to claim costs against the non-party should disentitle the respondents to any costs order against the non-party. The primary judge had rejected that defence for the reasons summarised in Kebaro (at [42]-[46]) primarily because the primary judge was not satisfied that the respondents were equipped with sufficient information about the non-party’s interest in the litigation to have realised that its role in the litigation brought it into the category of case of a person liable for a non-party costs order. The Full Court rejected (at [140]) the contention that the absence of a warning deprived the respondents of the non-party costs order in the factual context of that litigation.
[51] The respondents who were successful in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10)[2009] FCA 498 in defending the applicants’ claim were unsuccessful in seeking the award of costs against the non-party who was the wife of the second applicant. The factors relied on by the respondents included the following. The first applicant had granted a charge over its assets to the non-party who had borrowed funds secured over her house property to advance loans to the first and third applicants to purchase the orchard properties from the respondents. The non-party had assisted in providing security for costs that the applicants had been ordered to pay and was a beneficiary of the trust of which the first applicant was the trustee. The first and second respondents had given notice of intention to seek costs of the proceeding against the non-party. Contrary factors relied on by the non-party included that any benefits the non-party would have received, if the applicants’ claim had been successful, would accrue only by virtue of her securities and not by virtue of any action by her concerning the proceeding. It was apparent during the proceeding that the second applicant played a pivotal role in all matters concerning the applicants and the actual authority to make all decisions with respect to the conduct of the litigation remained with the second applicant.
[52] Collier J set out (at [20]) the principles in Knight and those developed or applied in the Federal Court subsequent to Knight as guidance to the exercise of the jurisdiction to award costs against a stranger to the litigation. The first principle that is listed that there must be “a real link between the non-party and the proceedings, which is material to the issue of costs” is then qualified by the subsequent principles including that the mere fact a person may benefit from litigation will not, without more, suffice to justify an award of costs against a non-party.
[53] Collier J made a finding (at [29]) that any financial support provided by the non-party to the applicants’ case was motivated by her natural affection for the second applicant rather than any financial interest she may have had in the outcome of the proceedings. Collier J inferred (at [31]) that the regular attendance by the non-party at the trial was, not unreasonably, to support the second applicant because the outcome of the trial was important to him. In relation to the assistance of the non-party in providing security for costs which the applicants were ordered to pay, Collier J considered (at [32]) that was explicable “by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by [the non-party] in the conduct of the litigation”. In addition, Collier J was not persuaded (at [33]) that financial arrangements of the non-party resulted in her having a “real link” with the applicants’ proceedings which was material to the issue of costs.
[54] The test to be applied on an application for a costs order against a non-party was expressed in general terms in Court House Capital Ltd v RP Data Pty Limited [2023] FCAFC 192 at [10] as whether a non-party has a “connection to the litigation” which is sufficient to warrant the exercise of the power to order costs against the non-party. An order for costs had been made against the non-party litigation funder Court House which appealed against the order. Under the funding agreement, Court House agreed to provide funding for the applicants’ solicitors, senior and junior counsel and disbursements and could provide further funding pursuant to a further funding agreement which could include agreement to fund adverse costs orders but Court House was under no obligation to provide any further funding or indemnity. No-win no-fee arrangements with the solicitors and junior counsel reduced the potential funding. In the event the applicants received an amount by way of judgment or settlement, they were required to repay the entire funding provided by Court House together with an additional sum calculated as 15 per cent of the gross settlement or judgment amount. Even though the solicitors for the applicants were to continue to be instructed by the applicants relating to the proceeding, the applicants were required to consult with Court House on any issues arising from the conduct or progress of the proceeding and could not compromise the claim without prior consultation with, and consent from, Court House. The appeal was unsuccessful. The Court rejected (at [37]) the submission that the proceeding could have been funded in any event without Court House’s funding of senior counsel. The Court concluded (at [38]) that Court House did “facilitate” the litigation for its own personal gain: it agreed to fund the litigation and funded senior counsel’s fees; the applicants were required to consult with it on the conduct of the proceeding and could not compromise the claim without its consent; and it attended the mediation.
[55] In MC Wholesaling Pty Ltd v Zheng[2024] VSCA 248, the first and second applicants (the applicants) were in the business of distributing milk powder products. The third applicant (who was referred to as Andy) was their sole director. The first respondent (who was referred to as Rocky) was the director and shareholder of the second respondent which provided delivery services to the first applicant. In June 2020 the applicants applied ex parte for, and obtained, a freezing order against Rocky and other parties alleging their involvement in a fraudulent scheme through which they had profited at the applicants’ expense. The minimum amount of assets that Rocky and the others were each required to retain under the freezing order was $402,887. The applicants commenced the proceeding against Rocky and his alleged co-conspirators for breach of contractual and/or fiduciary duties. There were two unsuccessful mediations (in September 2020 and April 2021) and the applicants rejected a Calderbank offer made in February 2021 from Rocky to settle the claim on the basis that each party walk away and bear their own costs. Six requests for the freezing order to be discharged were refused by the applicants. In April 2022, the applicants conceded their claim against Rocky and the second respondent did not exceed $60,000. Ultimately the applicants discontinued the proceeding against the respondents in November 2022. The applicants were ordered to pay the respondents’ costs of the proceeding on an indemnity basis and Andy was also ordered to pay the costs of Rocky and the second respondent on an indemnity basis. Andy’s appeal against the non-party costs order was dismissed.
[56] The primary judge had based the decision to make the non-party costs order on the finding that Andy was the “driving force” behind the litigation and the unfounded claims of fraud and serious misconduct and whether the applicants would choose to meet very substantial adverse costs orders depended on Andy (the control finding). Macaulay JA emphasised (at [89]-[90]) “that pronouncements by previous courts of factors that have or have not been taken into account in the exercise of the discretion are not to be treated as some sort of fixed list of ‘ingredients’ or prohibited factors”. Macaulay JA concluded (at [94]) that the non-party costs order was the result of the proper exercise of a judicial discretion. Matters not in dispute were set out by Macaulay JA (at [101]) that Andy:
“(a) gave all instructions on behalf of the applicant companies in relation to the proceeding;
(b) swore the initial affidavits upon which the freezing orders were obtained;
(c) attended the hearings and mediations;
(d) instructed the applicant companies’ solicitors to refuse the Calderbank offer;
(e) gave instructions not to release or modify the freezing order in response to the six letters from Rocky’s solicitors requesting that the applicant companies do so; and
(f) ultimately, gave instructions to abandon the claims that he had caused to be instituted.”
In addition, Andy gave the undertaking as to damages upon which the freezing orders were obtained. There was no evidence that Andy himself funded the proceeding. The second applicant had a net deficiency of assets. The first applicant had more than sufficient funds to meet the estimated costs.
[57] Macaulay JA found (at [111]) that the primary judge was justified in finding that whether the first applicant had the financial capacity to pay the costs ordered against it came down to Andy’s choice. Macaulay JA therefore concluded (at [115]) that there was no error by the primary judge in considering that it was in the interests of justice to make an order that Andy pay the costs of Rocky and the second respondent, having regard to the role Andy played in the litigation, the unlikely prospect that the first applicant could pay the adverse costs order without Andy choosing to put in funds, and the cause for doubt that he would do so.
[58] Lyons and Orr JJA agreed with Macaulay JA that the appeal by Andy against the non-party costs order should be dismissed. Lyons JA (at [137] did not agree with the control finding made by the primary judge without a finding that Andy would deal with the assets of the first applicant in a way to defeat the rights of Rocky and the second respondent as judgment creditors as to their costs. Both Lyons and Orr JJA considered (respectively at [134] and [155]-[156]) that the primary judge was entitled to make the non-party costs order against Andy on the basis he was the driving force behind the institution and maintenance of claims of fraud and serious misconduct.
[59] Even though not necessary for the decision in MC Wholesaling, Lyons JA observed (at [146]):
“Although it was not relied upon in the proposed grounds of appeal, I consider it desirable that a party who may seek a costs order against a non-party associated with a party to a proceeding should put that non-party on notice as soon as reasonably practicable. In my view, providing such notice serves two purposes. First, it ensures fairness to the non-party. Second, such notice is likely to cause the non-party to review his or her role in the proceeding and/or may make a real difference as to how that non-party conducts the litigation.”
[60] In practical terms, the prospects of the opposing party being able to pay an adverse costs order and the anticipated costs of remaining a party to litigation are important considerations for any party on whether to endeavour to compromise the litigation. Even though (as the above survey of authorities shows) there are many different circumstances in which the jurisdiction to order costs against a non-party has been exercised, the dominant reason for that jurisdiction is to ensure that the non-party who is the real litigant or for whose benefit the litigation is being conducted (and therefore facilitated the commencement and/or continuance of the litigation for that purpose) is also vulnerable to an adverse costs order. If the non-party is truly controlling or influencing the actual party with whom the non-party is associated, the prospect of a costs order against the non-party may be the incentive to the non-party to exercise that control or influence, so that the party considers whether to compromise or otherwise bring the proceeding to an end. As observed by Lyons JA in MC Wholesaling,the giving of the warning by the party who may eventually seek a non-party costs order, if successful in the litigation, is a matter of procedural fairness to the non-party. What is relevant is the opportunity that is given by the warning to the non-party to consider the non-party’s position in relation to the relevant proceeding and the non-party’s support of, or influence over, the party with the whom the non-party is associated. The issue is not whether the non-party would take up the opportunity to exercise the influence over the party with whom they are associated. If the warning is not given and costs are subsequently sought against the non-party, it may raise an argument that the successful party failed to mitigate its costs of the litigation for the benefit of the non-party.
[61] Where the circumstances were patent to all connected to the litigation (including the non-party) that the non-party is the real litigant or the driving force for the litigation (as was the case in MC Wholesaling) or for whose benefit the litigation was being conducted (as in Knight) or for other reasons which made the giving of a warning of the intention to seek a non-party costs order unnecessary (as in Gore), the failure by a party to give a warning on the intention to seek a non-party costs order may have no consequences for the application. Where it is marginal (or not so obvious) as to whether a non-party would be liable for an order to pay the successful party’s costs of the proceeding, a warning to the non-party of the intention to hold them liable for the costs of the proceeding (if the party with whom they are associated is unsuccessful) has much greater significance. It is not merely a factor to be considered in those circumstances on an application for a non-party costs order, but it is a factor which may, in an appropriate case, determine whether it is in the interests of justice for a costs order to be made against the non-party.
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Did the primary judge err in the approach to the failure to warn?
[66] Even though Knight was the seminal case in Australia for exercising the jurisdiction to make an order for costs against a non-party, the decision in Knight made clear that the criteria identified (at 192-193) for making such a costs order were appropriate for that type of case but there were “a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an award for costs against a non-party”. The primary judge’s approach in the reasons of focusing mainly on the three criteria in Knight and then dealing briefly with other relevant factors when considering whether the interests of justice required that an order for costs be made against the appellant distorted the identification, and weighing up, of the factors that were relevant to the exercise of the discretion in the circumstances of this particular case.
[67] Based on relevant findings made by the primary judge, the factors to be taken into account in deciding whether to make the non-party costs order against the appellant were:
(a) it was the appellant’s real property searches of the Dagmar Street property and the Harbut Street property in March 2017 that precipitated the letter of demand dated 12 April 2017 sent by the appellant’s solicitors on behalf of the mother to the respondents that led to the mother’s commencing the proceeding ([132](h) and (j) of the reasons);
(b) the appellant at the initial stage and at various stages in the proceeding had considerable influence over the mother ([132](a), (b), (i) and (o));
(c) the mother, to the appellant’s knowledge, had no assets to meet any costs order, if the mother was unsuccessful in the proceeding ([132](c));
(d) the appellant was involved in discussions with the first respondent who outlined that the Harbut Street property had been transferred to the respondents intentionally by the mother ([142](d));
(e) the appellant may not actually have known that the mother’s allegations of fraud against the respondents were false, as the mother had on at least one occasion not been full and frank with the appellant ([142](g)(i));
(f) the conduct of the litigation by the mother was unreasonable and improper ([132](e)) (but this factor must be qualified by the factor identified at [142](g)(i));
(g) the appellant counselled and encouraged or otherwise influenced the mother to continue the proceeding making the serious fraud allegations with at least reckless disregard by the appellant to the matters which had been outlined to her by the respondents ([142](g)(ii)) (but this factor must also be qualified by the factor identified at [142](g)(i));
(h) the appellant made a minimal contribution to the legal costs and outlays incurred by the mother in respect of the proceeding and was otherwise not the source of the funds for the litigation ([51](b) and (d)(i), [107] and [132](f));
(i) the appellant had no direct interest in the proceeding but her conduct in making the initial demand for a payment of $1.75m, being involved in negotiations and maintaining that initial demand “tended” to support the conclusion that she had an “agenda” or “motive” in the litigation being pursued which was for her mother to get a negotiated settlement of $1.75m from the respondents ([132](g) and [142](h));
(j) there was no warning by the respondents to the appellant during the course of proceeding before the parties to the proceeding embarked on a trial that took 16 days of the respondents’ intention to seek a non-party costs order against the appellant, if the respondents succeeded in defending the mother’s proceeding ([133]);
(k) the appellant played an active part in the proceeding but did not exclusively control the conduct of the proceeding and the specific examples given by the primary judge of the appellant’s involvement were the investigations and demands on behalf of the mother prior to the commencement of the proceeding, her influence over the mother in settlement negotiations, giving “at least to some extent” instructions to the mother’s lawyers, and in pressing the respondents to settle with the mother in October/November 2019 ([132](d), (j), (k), (l) and (m) and [142](c)).
[68] There were factors in favour of and against making the non-party costs order against the appellant.
[69] The primary judge did not address directly the undisputed evidence given by Mr Hansen that all instructions were given to him by the mother but Margo’s evidence supported the inference that the appellant influenced the instructions which the mother did give to her lawyers. The appellant’s text messages in October/November 2019 showed how the appellant aligned herself with the mother’s interests in the proceeding (at least at that stage).
[70] It is notable that the primary judge’s findings about the appellant’s involvement focused on the conduct that precipitated the proceeding and the appellant’s role in pursuing a settlement for the mother of a significant payment from the respondents at least up until November 2019. It was significant that almost all the funds for the mother’s conduct of the litigation came from sources other than the appellant. It was a significant finding made by the primary judge (at [201] of the original decision) that the mother was not full and frank with the appellant when she returned home after signing the transfer in favour of the respondents on 19 June 2007 which resulted in the conclusion of the primary judge (at [142](g)(i) of the reasons) that the appellant may not actually have known the mother’s allegations of fraud against the respondents were false. That finding was mitigated by the additional finding (at [142](g)(ii)) that the appellant counselled and encouraged or otherwise influenced the mother to continue the proceeding with reckless disregard to the matters which had been outlined to her by the respondents (but which had to be considered in the context of the mother’s lack of frankness with the appellant about the circumstances of the mother’s execution of the transfer).
[71] When (to the respondents’ knowledge) it was not apparent to the appellant when she made the threat to the respondents in November 2019 that the mother had nothing to lose by continuing with the proceeding that the appellant herself may be at risk of a non-party costs order in favour of the respondents on their successful defence of the mother’s claim, the failure of the respondents to warn the appellant at any time thereafter up to at least the commencement of the trial of the respondents’ intention to seek a non-party costs order against the appellant was a critical factor in whether the non-party costs order should be made against the appellant.
[72] As explained at [34] above, despite the primary judge’s listing the failure to warn (at [133] of the reasons) as a relevant factor in deciding whether to make the non-party costs order, there was no assessment of the significance of the respondents’ failure to warn the appellant in the circumstances of the case. If that had been undertaken, there was only one conclusion which could be reached. The failure to warn the appellant was a determinative factor in the circumstances of this otherwise marginal case for making the non-party costs order where it was not obvious before the trial of the proceeding that such an order would ultimately be sought against the appellant. The primary judge’s reasons show that there was no real consideration of the significance of the failure to warn.
[73] The appellant succeeds on ground 1(a) in showing that the primary judge erred in exercising the discretion to make the non-party costs order against the appellant by failing to assess the significance of, and therefore take into account in a meaningful way, the lack of any warning by the respondents that such an order would be sought against the appellant. That failure is sufficient to dispose of the appeal.
….
Orders
….
[79] The orders which should be made are:
Application filed on 26 November 2024 for leave to adduce evidence refused with costs.
Application for leave to file the further amended notice of appeal dated 3 February 2025 refused with costs.
Appeal allowed.
Orders made by the primary judge on 11 and 18 April 2024 are set aside.
Application filed by the respondents in the Trial Division on 31 October 2022 (the non-party application) is dismissed.
Subject to orders 1 and 2, the respondents must pay the appellant’s costs of the appeal (excluding the costs of the preparation of the second and third versions of the supplementary record books), the appellant’s costs of the non-party application and the costs reserved in the order of the primary judge made on 12 June 2024.
[1] Hearsay Issue 92 (June 2023, Advocacy) considered the Federal Court appellant decision involving a non-party costs order against the litigation funder in the Court House Capital case in ‘Third Party Costs Order against Litigation Funder – “Not motivated by Access to Justice”. The link to that article is here.
Regina Spektor (born 18 February 1980) is a Russian-born American singer, songwriter and pianist.
Spektor’s father was a photographer and amateur violinist, and her mother was a music professor.
Wikipedia says:
[Spektor’s] family left the Soviet Union for the Bronx [in New York] in 1989, when Spektor was nine and a half, during the period of Perestroika, when Soviet citizens were permitted to emigrate. She had to leave her piano behind.[16] The seriousness of her piano studies led her parents to consider not leaving the Soviet Union, but they finally decided to emigrate due to the racial, ethnic, and political discrimination that Jewish people faced.
In New York City, Spektor studied classical piano with Sonia Vargas, a professor at the Manhattan School of Music, until she was 17; Spektor’s father had met Vargas through Vargas’ husband, violinist Samuel Marder.
Spektor completed the four-year studio composition program of the Conservatory of Music at Purchase College within three years, graduating with honors in 2001.
Spektor released her eighth studio album in 2022.
The following is a cover of John Lennon’s ‘Real Love’ for Triple J’s ‘Like a Version’ performed in Australia in 2007, as introduced by Richard Kingsmill.
In the course of a recent Victorian Supreme Court criminal trial, written submissions made jointly by the prosecution and defence, upon a request by the Judge in respect of a discrete issue, were found to contain fictitious case citations and Parliamentary speeches.
Upon this being discovered, the Judge called for revised submissions, which most unfortunately, contained legislation that did not exist.
On this issue, Justice Elliott said in Director of Public Prosecutions v GR [2025] VSC 490 (14 August 2025) at [61] – [80]:
G. Use of artificial intelligence
A further matter needs to be raised concerning written submissions filed with the court. More specifically, the matter concerns the due administration of justice and the use of artificial intelligence in the preparation of submissions or other materials filed or otherwise put before the court.
As is apparent from the above reasons, an issue arose in this proceeding on the power of the court to make particular orders under section 24(1) of the Act. In seeking to obtain assistance from the parties on this issue, an email was sent to them on 30 July 2025. That email noted that the materials filed to date did not address the fact that section 24(1) did not expressly provide for a child to be remanded in a facility under the control of youth justice. The parties were invited to provide an outline of submissions on the extent of the power of the court to remand GR at various locations in the event that he was declared liable to supervision under Part 5 of the Act. The email concluded in the following terms:
His Honour requests that, if the parties are able to reach agreement, a written outline of joint submissions on this issue be filed by 4.00pm on Wednesday 6 August 2025. If the parties are unable to reach agreement, then separate written outlines of submissions are to be filed by the same time and date.
At 4.54pm on 5 August 2025, my associates received an email from a partner of the law firm acting for GR which stated that the parties had conferred on the issue. The addressees of the email included the prosecution’s counsel and solicitors, and defence counsel. The email “attached submissions as to the joint position agreed by both the prosecution and defence”, and foreshadowed the document being filed. This in fact occurred shortly after. The document filed by GR’s solicitors was entitled “Submissions on Custodial Remand under s 24 of the [Act]” and was not signed by counsel or solicitors for either party.
In preparation for the hearing, the court considered these filed submissions. However, it was not possible to locate some of the materials referred to in those submissions, including what purported to be direct quotes from cases recorded as being decisions of this court.
Accordingly, my associates emailed the parties and their counsel the morning before the hearing requesting the parties provide copies of those cases, together with the Second Reading Speech and the Commission’s Report that had also been referred to and purportedly quoted.
Later that morning, GR’s senior counsel sent an email to my associates stating that the filed submissions were wrong. Further, the email stated that the citations were wrong on the basis that “[t]hey do not exist”. It was further noted that the cases referred to were incorrectly cited and did not apply to this matter. Senior counsel took full responsibility for the errors, apologised and foreshadowed amended submissions being filed in the near future.
Early that afternoon, revised submissions filed on behalf of “The Accused” were emailed to my associates by senior counsel. The covering email stated that the prosecution were aware of the contents of the revised submissions and did not seek to make any further submissions. An apology was again made for the errors in the previous document.
The revised submissions unsurprisingly made no reference to the non-existent cases. They also removed fictitious quotes from what were previously said to be parts of the Second Reading Speech and the Commission’s Report.
An email was then sent by the court noting receipt of the revised submissions. The email acknowledged the initial submissions had been filed by the defence and that GR’s senior counsel had taken responsibility for the state of those initial submissions. However, it was further noted that the submissions had been filed on “a joint basis” and accordingly the parties were directed to provide either a joint explanation or individual explanations as to how those initial submissions had come to have been filed.
Later that afternoon, the court received an email from GR’s senior counsel explaining that artificial intelligence had been used to assist with the joint submissions. The court was informed that the initial citations were checked and were accurate and that an assumption was made, wrongly, that the later cases and citations were also correct. On this basis, the submissions were forwarded to the prosecution for its approval. Again, senior counsel took responsibility for the “fault” and made an unreserved apology to the court.
The draft submissions that had been forwarded by the defence as referred to in the preceding paragraph were reviewed upon receipt by both counsel and solicitors acting for the prosecution. In an email sent at 4.38pm on 5 August 2025, the prosecution advised defence counsel and solicitors that “we agree with the position expressed in the submissions you provided”.[31] The email invited GR’s solicitors to file the submissions “noting they were agreed by us”, and expressed appreciation if that were done. The email stated the prosecution’s intention to file written submissions that “speak to the entire process” and stated that those submissions would include the following:
In the present case, we agree with the defence that if the court declares [GR] liable to a supervision order he may be remanded in a youth justice centre under s 24(1)(e), which empowers the court to make “any other order the court thinks appropriate”.
To be clear, there was no suggestion that the prosecution took any issue with the draft submissions that were intended to be filed.
In an email sent to the court the afternoon before the hearing commenced, the prosecution explained its position in relation to the “joint submissions document”. The prosecution stated the joint submissions document was not checked “because we ultimately agreed with the conclusion at paragraph 20”. It was further stated that the prosecution should have checked all references in any documents provided. It was acknowledged that the position was unsatisfactory and an apology was also proffered by the prosecution.
The pervasiveness of potentially misleading information caused by the use of artificial intelligence did not end there. The revised submissions filed the afternoon before the hearing were not properly reviewed by defence or prosecution counsel.[32] Indeed, the revised submissions referred to legislation that did not exist, and also a provision in the Act that was said to have been inserted and then repealed, which in fact never occurred and which provision never existed.
These matters were raised with counsel at the start of the hearing yesterday. After appropriate apologies were given, it was agreed that GR’s counsel would be given the opportunity to file and serve further submissions that did not contain inaccuracies as a result of misinformation provided by artificial intelligence.
Accordingly, it was not possible to conclude the hearing yesterday (as had been expected prior to this issue arising) and the matter resumed today after the court had the benefit of further revised submissions from the defence.
At the risk of understatement, the manner in which these events have unfolded is unsatisfactory.
Observations have been previously made in other cases about the unsatisfactory consequences that may flow from litigants using artificial intelligence in the preparation of materials to be relied upon for court purposes.[33] The comments in these cases have been confined to circumstances where self-represented litigants have utilised this technology in an attempt to present their case.
In May 2024, this court published “Guidelines for litigants. Responsible use of artificial intelligence in litigation”.[34] It is essential that all litigants and practitioners adhere to these guidelines.
The ability of the court to rely upon the accuracy of submissions made by counsel is fundamental to the due administration of justice. Self-evidently, as was immediately and unequivocally acknowledged by counsel in this case, any use of artificial intelligence without careful and attentive oversight of counsel would seriously undermine the court’s processes and its ability to deliver justice in a timely and cost-effective manner.
Regrettable as it is to single out counsel and their instructing solicitors in this case for what has occurred, in light of the matters set out above it is important to record that counsel must take full and ultimate responsibility for any submissions made to the court. To this end, it is not acceptable for artificial intelligence to be used unless the product of that use is independently and thoroughly verified. The same may be said for solicitors responsible for producing or filing court documents.
On 16 May 2025, The Law Commission of England and Wales published a detailed report arising from the first comprehensive review of the Wills Act of 1837 in almost 200 years.
The recommendations are noteworthy, and a draft Bill involving a complete rework of the Wills Act has been produced.
The content and course of the draft Bill through Parliament will be followed with interest in Australia.
The wills project of the Law Commission commenced in 2016.
The Law Commission concludes in its report that reform is needed in a number of respects, and notes that:
The principle of testamentary freedom is a valuable aspect of owning property, giving owners the right to give their property to others on their death;
Whilst the law governing wills is old, its age alone would not be a good reason to reform the law;
“[M]any of the rules governing wills achieve policies or safeguards that reflect human nature and commonly held beliefs that remains as true or necessary today as they were in previous centuries.”
The summary of the report includes:
“However, some things have changed. Most people will live longer than their ancestors did, and, as a consequence, more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age. The property that the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only; but documents in electronic form are now far more prevalent than paper documents. We therefore think that reform is necessary.”
The Law Commission stated the aims of the project were to make recommendations to reform the law so that it better:
Supports the exercise of testamentary freedom;
Protects testators, including from undue influence and fraud; and
Increases clarity and certainty in the law were possible.
Areas where recommendations were made for change include as follows.
Dispensing power
Giving the Court a dispensing power to order a will be valid despite not complying with formality requirements – such as provided for in s.18 of the Succession Act 1981 (Qld);
Age of testator
Reducing the age of a person being able to make a valid will from 18 to 16;
Rectification
The Court being able to rectify a will where it is satisfied that the will does not given effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will – as with that provided for in s.33 and s.33A of the Succession Act;
Statutory presumption of undue influence
Introduce a statutory presumption of undue influence, whereby “if the Court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the Court, on the balance of probabilities, that undue influence did not take place, and that the will did in fact reflect the testator’s own freely formed intentions”.
The proposed section 15 of the Bill to new Wills Act relating to testamentary undue influence states as follows:
15. Testamentary undue influence
(1) Subsection (2) applies if, in proceedings on a probate claim—
a party alleges in any particulars of claim, defence or other statement of case that a person exerted undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will, and
there is evidence which provides reasonable grounds to suspect that the undue influence was exerted.
(2) In deciding the claim, the court may find the undue influence to have been exerted unless the contrary is proved on the balance of probabilities.
(3) In determining whether there is evidence which satisfies subsection (1)(b), the court must (among other things) have regard to any evidence about—
the conduct, in relation to the making of the will or change, of the person alleged to have exerted undue influence over the testator;
any relationship of influence between the person and the testator;
the circumstances in which the will was made.
(4) For the purposes of this section a person exerts undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will if the will or change is made as result of the person overpowering the testator’s volition (without convincing the testator’s judgment).
(5) In this section “probate claim” means any claim relating to the business of obtaining probate and administration, other than non-contentious or common form probate business (within the meaning of Part 5 of the Senior Courts Act 1981 (see section 128 of that Act)).
(6) Nothing in this section prevents a court from finding undue influence to have been exerted as a result of an allegation in subsection (1) being proved on the balance of probabilities.
Invalidating a gift
The rule invalidating a gift in a will to a witness, or to their spouse or civil partner (of that witness) should also be extended to the cohabitant of a witness, the person who signed the will on behalf of the testator and the spouse, civil partner or cohabitant of a person who signed the will on behalf of the testator.
However, the Court can save such a gift if it considers it just and reasonable to do so having regard to the conduct of that person relating to executing the will or proving the will’s validity.
Effect of marriage or civil partnership
The rule that marriage or civil partnership revokes a will should be abolished.
The Law Commission reason for this includes:
“most people do not know about this automatic revocation rule. The result is that testators’ wills are being revoked without their knowledge, and without testators necessarily wanting their will to be revoked”;
Further, “we are concerned that the rule that marriage revokes a will is possibly being exploited for the purpose of enabling “predatory marriage” ”;
“we therefore believe that abolishing this rule will add a layer of protection for vulnerable people at risk of this insidious form of financial abuse”.
In Queensland, a will is revoked by the marriage of a testator pursuant to s.14(1) of the Succession Act.
Testamentary capacity
The test for whether a person has the mental capacity necessary to make a will is currently that as set out in the English case Banks v Goodfellow (1870).
The Law Commission notes that the Mental Capacity Act 2005 (MCA) provides the current test for whether a person has mental capacity to make a decision in many areas of their life, covering a broad range of financial and warfare decisions that may need to be taken on behalf of a person who lacks capacity.
The Law Commission states:
“The MCA creates a presumption that a person has capacity unless it is shown that they do not. It sets out a two-stage test. First, the MCA sets out the circumstances in which the person is taken to be unable to make a decision for themselves, because they are unable to understand the information relevant to the decision; retain that information; use or weigh that information as part of the process of making the decision; or communicate the decision. Second, the person’s inability to make decision as defined, must be caused by an impairment of the mind or brain, or a disturbance in their functioning. Where parts of the tests are satisfied, the person lacks capacity in relation to the specific decision. This lack of capacity can be temporary or permanent….”
The Law Commission continues further:
“There are wider benefits of including will-making within the scheme of the MCA as a whole. The MCA test provides a clear test of capacity. Adopting the MCA test will ensure that developments in the law on capacity generally will apply equally to the law governing testamentary capacity. It will also make the law more clearer for those who assess capacity as part of their roles – such a medical practitioners – in relation to a wide range of types of decisions”.
The Law Commission therefore recommended that the tests set out in the Mental Capacity Act 2005 should apply to all assessments of testamentary capacity.
The Law Commission however recognises that there is a long history of case law with regards to testamentary capacity over the last 200 years and that this case law will remain relevant to the operation of the MCA test when it is being used to assess someone’s capacity to make a will, and “in particular, it will continue to inform the information relevant to the specific decision of making a will.”
In this regard, the Law Commission recommends that the MCA Code of Practice which provides guidance to those assessing capacity under the MCA, should refer to and explain the elements of the Banks v Goodfellow test.
The Mental Capacity Act 2005 test presumes that a person has capacity unless it is shown that they do not. The Law Commission recommends that this presumption of capacity should apply in the context of making a will – as it presently does.
The Law Commission further recommends “that there should be a code of practice on testamentary capacity issued in the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a will or assessing capacity in their role as a professional or for payment should be required to have regard to it”.
Electronic Wills
The Law Commission notes that the formal requirements for a valid will remain nearly exactly the same as they were when the Wills Act 1837 was enacted.
The Law Commission recommends that provision should be made for electronic wills, on the basis that electronic wills must be secure. The Law Commission states:
“They must provide the same level of security against fraud and undue influence and provide the same level of certainty and evidence about the testator’s intentions as paper wills. Our review has led us to conclude that they can: that electronic wills can be made in a way that will provide strong evidence that the will was executed by the testator; cause the testator to think carefully about what they want to achieve with their will; direct the testator into complying with standard, clearly defined requirements; and provide sufficient protection for testator’s against fraud and undue influence when making their will.”
Further with respect to electronic wills, the Law Commission says that it should be possible for the requirement for witnesses – or a person signing on the testator’s behalf – to be in the testator’s presence to be met by remote presence by way or a visual transmission (for example by video call).
Draft Bill
The Law Commission has produced a draft Bill of an entirely new Wills Act, in order to provide “a single, modern Act that contains all the legislation governing wills in one place”.
The Law Commission concludes in its summary:
“Therefore, our draft Bill for a new Wills Act does a number of things. If enacted, it would amend the law to bring into effect our recommendations. Where we are not recommending that the law should be changed, the draft Bill converts existing provisions of the Wills Act 1837 into modern provisions and brings into one place some of the other provisions that are about wills, in other legislation, so that they can be found in one place. The draft Bill dispenses with provisions of the 1837 Act where we have concluded that they no longer serve any function.
The draft Bill has been written in a modern and accessible way, using updated and simplified language.”
These recommendations and the draft Bill will no doubt be closely considered by Australian state law reform commissions and their legislatures.
The Law Commission’s summary of its key recommendations is here.
The NSW Court of Appeal considered this issue in the recent decision in Tok v Rashazar [2025] NSWCA 94 (7 May 2025).
Such an assessment will normally be assessed as at the date of breach, but that rule may yield in certain circumstances, as discussed by Stern JA (with whom Payne and Kirk JJA agreed).
The topic of using wasted expenditure in such an assessment was also considered.
Stern JA said:
Date of assessment of damages for breach of contract
An important predicate of the primary judge’s reasoning at [102] (set out at [31] above) was that the value and profitability of Rashazar on the counterfactual that it had become a 30% shareholder of Fresh Cut were relevant to the assessment of damages for breach of contract. Implicit in this was a finding that events after the date when the obligation of Mr Tok to transfer the shares crystallised would be relevant to the assessment of damages. The correctness of this finding was implicitly raised in ground one, as the appellants contended that they could have put evidence before the Court as to the value of the 30 shares in Fresh Cut as at the date of breach.
In considering this contention, the starting point is necessarily “[t]he rule of the common law … that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed”: Robinson v Harman[1848] EngR 135; (1848) 1 Exch 850 at 855 (Parke B); Tabcorp Holdings Ltd v Bowen investments Pty Ltd(2009) 236 CLR 272; [2009] HCA 8 (“Tabcorp”) at [13] (French CJ, Gummow, Heydon, Crennan and Kiefel JJ). As to when damages are assessed, ordinarily, as was held in Johnson v Perez[1988] HCA 64; (1988) 166 CLR 351 at 367; [1988] HCA 64, damages for breach of contract are assessed as at the date of the breach, however:
Wenham v Ella(1972) 127 CLR 454; [1972] HCA 43 (“Wenham”), cited in the extract set out above, involved a breach of contractual obligation of the appellant to transfer shares which would have given the respondent a 6/20 undivided share in a profit-making property. The High Court, upholding the trial judge’s award, held that the respondent’s compensable loss included the loss of “the product of the interest in the land” from the date of the failure to transfer to the date of judgment: at 461 (Barwick CJ; see also Menzies J at 463, Walsh J at 464-465; Gibbs J at 472-4; Stephen J at 474). Menzies J observed that the “rules which operate satisfactorily in cases where purchasers have not paid money, cannot be applied automatically to cases where purchasers have paid money for what has not been delivered to them”: at 464 (see also Barwick CJ at 463 and Gibbs J at 473). Walsh J at 466 (cited with approval by Steward J in Elisha v Vision Australia Ltd[2024] HCA 50; (2024) 99 ALJR 171 at [82]) described an error in the appellant’s contention as:
“treating rules which constitute useful guidance in the ascertainment of damages as rigid rules of universal application, instead of treating them as prima facie rules which may be displaced or modified whenever it is necessary to do so in order to achieve a result which provides reasonable compensation for a breach of contract without imposing a liability upon the other party exceeding that which he could fairly be regarded as having contemplated and been willing to accept.”
In a passage recently cited with approval by Ward P (Meagher JA and Griffiths AJA agreeing) in Khattar v Khattar[2023] NSWCA 133 at [215], Gibbs J observed at 473-4 that:
“The general principle that damages are normally measured by reference to the circumstances at the date of the breach of contract does not mean that events that have occurred after that date may never be considered. The appellants’ contention on this point, if correct, would mean that evidence could never be given of the amount of profits lost as the result of a breach and that the every-day practice of receiving evidence as to the damage that had in fact flowed from a breach and as to steps that were or could have been taken to mitigate a loss is erroneous. However, the evidence as to the income in fact lost by the breach was in my opinion plainly admissible. As to the contention that it was wrong that the amount of damages should have depended on the time that elapsed until judgment, the answer simply is that until that time the respondent was kept out of his profits as well as deprived of his asset and its value.”
To similar effect, the link between the date at which damages for breach of contract are assessed and the duty to mitigate was explained by Oliver J, in Radford v de Froberville [1977] 1 WLR 1262 at [1285] (referred to by the High Court in Tabcorp and cited with approval in Renown Corporation Pty Ltd v SEMF Pty Ltd(2022) 110 NSWLR 246; [2022] NSWCA 233 at [11] (Brereton JA, Meagher and Mitchelmore JJA agreeing)):
“It is sometimes said that the ordinary rule is that damages for breach of contract fall to be assessed at the date of the breach. That, however, is not a universal principle and the rationale behind it appears to me to lie in the inquiry — at what date could the plaintiff reasonably have been expected to mitigate the damages by seeking an alternative to performance of the contractual obligation?”
(See also H G Beale, Chitty on Contracts (35th ed, 2023, Sweet & Maxwell) at [30-107] and E Peel, Treitel, The Law of Contract (15th ed, 2020, Thomson Reuters) at p 1162.)
Consistent with this, Wenham was distinguished in CH Leahman Investments Pty Ltd v Tuesday Enterprises Pty Ltd[2024] WASCA 142 (“CH Leahman”) at [274] (Buss P, Vaughan JA, Lundberg J) on the basis that in Wenham the purchaser had paid the full purchase consideration whereas in CH Leahman “[a]t all times the appellant continued to be in a position to deploy the resources that it would otherwise have had to commit to the completion of the purchase of the Rexwells’ share”.
Further, in the passage set out at [53] above, Gibbs J recognised that events after the date of breach may be relevant to the assessment of damages even when assessed as at the date of breach. To similar effect, in Hungerfords v Walker[1989] HCA 8; (1989) 171 CLR 125 at 163; [1989] HCA 8, Dawson J held:
“That is not to say, however, that when damages are assessed as at the time of the wrong, foreseeable future losses which flow from the wrong, and not merely from delay in compensating for the wrong, may not be included in any award. … Moreover, the quantification of future losses may be made by reference to events which have occurred between the time when the cause of action arose and judgment upon the basis that actual facts are preferable to speculation: Willis v. The Commonwealth. Damages so assessed nevertheless form part of the loss flowing from the breach and are not damages for delay in the payment of damages.” (footnotes omitted)
Having regard to this authority, the primary judge did not err in finding events after the breach of contract were relevant to the assessment of damages for breach given that Rashazar paid in full for the 30 shares in Fresh Cut in 2016 and none of the respondents were aware of the breach of contract until some years after it occurred.
Using wasted expenditure as the basis for assessing damages for breach of contract
A second critical premise of the primary judge’s conclusion at J[102] is that this was an appropriate case in which to assess damages for breach of contract by reference to wasted expenditure. The primary judge’s key finding in this regard was predicated both upon the lack of information available to the respondents and the Court and upon her Honour’s finding that the question of what might have happened to Fresh Cut if Rashazar had been a 30% shareholder was imponderable.
The plurality judgment of Edelman, Steward, Gleeson and Beech-Jones JJ in Cessnock at [61] explained when it is that damages for breach of contract can properly be calculated by reference to wasted expenditure:
“The legal onus to prove loss arising from a breach of contract rests on the plaintiff as the party seeking to recover damages. However, where a breach of contract has resulted in (namely, caused or increased) uncertainty about the position that the plaintiff would have been in if the contract had been performed, then the discharge of the plaintiff’s legal burden of proof will be facilitated by assuming (or inferring) in their favour that, had the contract been performed, then the plaintiff would have recovered the expenditure they reasonably incurred in anticipation of, or reliance on, the performance of the contract. The strength of this assumption or inference, and thus the weight of the burden placed on the party in breach to adduce evidence to rebut the inference in whole or in part, will depend on the extent of the uncertainty that results from the breach. Expressed in this way, this facilitation principle is tied to its rationale, namely the uncertainty in proof of loss occasioned to the plaintiff by the defendant’s breach.”
At [139], the plurality further explained:
“In summary, the facilitation of the plaintiff’s proof arises in cases where the defendant’s breach of an obligation results in uncertainty and difficulty of proof of loss for the plaintiff, who has incurred expenditure in anticipation of, or reliance on, the performance of the obligation that was breached. The facilitation of proof that reasonably incurred expenditure would have been recovered has been described by Leggatt J as an example of courts doing the ‘best they can not to allow difficulty of estimation to deprive the claimant of a remedy, particularly where that difficulty is itself the result of the defendant’s wrongdoing’. In applying the principle ‘reasonably … according to the circumstances of each case’, the plaintiff is given an evidential ‘benefit of any relevant doubt’ that expenditure would be recouped to the extent that it was reasonable, with the practical effect of giving the plaintiff ‘a fair wind’ to establish loss. The strength of the wind will depend upon the extent of the uncertainty resulting from the breach by the defendant. And all of the circumstances, including any evidence led by the defendant, must be considered. The plaintiff is given a ‘fair wind’ but not a ‘free ride’.” (footnotes omitted)
Having regard to these principles, the appellants’ contention that the primary judge erred in assessing damages for breach of the share sale agreement by reference to wasted expenditure should be rejected. The primary judge correctly identified that integers relevant to the assessment of damages premised upon Mr Tok’s compliance with the share sale agreement were “imponderable”. As I explain below, that plainly flowed from Mr Tok’s breach. That, together with the obvious difficulty in obtaining reliable financial information about the financial performance of Fresh Cut, justified the primary judge facilitating the respondents’ burden of proof by assuming (or inferring) in their favour that, had the contract been performed, they would have recovered the expenditure they reasonably incurred in anticipation of, or reliance on, the performance of the contract.
BPM released their debut album in 2011 – Happiness And Surrounding Suburbs – which includes It’s Nice to be Alive. Such song is featured in the link below.
BPM have released a further six albums and five have debuted in the ARIA top five albums.
It was recently announced that BPM will be supporting the stadium tour of Oasis in Australia kicking off in October 2025 – what a gig.
As to the video, I live in the neighbourhood of the seriously steep street that the skateboarder is riding down, and
I would not recommend doing the same; and
I would like to see how he goes on the lower section, including navigating the perpendicular road at the bottom.
The Law Society Gazette (UK) recently reported on an English High Court judicial review case where the Judge referred lawyers to the regulatory authorities that had made submissions containing five fake cases.
In an article titled ‘Judge flags lawyers to regulators after five fake cases cited’ by John Hyde dated 7 May 2025, it was reported that the lawyers in question initially responded to the Court that the false case citations were ‘cosmetic errors’ but later recanted – accepting that they were serious errors.
The Judge said because the Barrister in question had not been cross-examined a finding could not be made that the fake cases had been generated by artificial intelligence.
The Judge further said he had ‘substantial difficulty with members of the bar who put fake cases in statements of facts and grounds’.
A finding was made that the lawyers’ conduct was ‘improper, unreasonable and negligent’.
The transcript of the hearing was ordered to be sent to the Bar Standards Board and the Solicitors Regulation Authority.
The Australian Commonwealth Parliament first opened in Melbourne on 9 May 1901, just over 124 years ago.
Thousands of people watched the royal procession as it made its way through the streets of Melbourne to the Exhibition Building
The then new King of England, Edward VII, sent his son and heir, The Duke of Cornwall and York (later King George V) as his representative at the Opening where the ceremony was witnessed by 12,000 invited guests.
“Big Picture” by Tom Roberts
The online document by the Parliament of Australia titled ‘Exhibitions’’ says further as to the Opening of the first Parliament:
The senators-elect assembled on a low platform in front of a dais in the Main Hall of the Exhibition Building at 11.30am. The Duke and the Governor-General, Lord Hopetoun, and their parties entered at 12 noon and ascended the dais. The elected members of the House of Representatives, waiting in the western nave, were then called by the Usher of the Black Rod, and took their places to the senators.
The clerk of the parliament read the Letters Patent …
The Duke declared the parliament open and the new members of parliament then made their way to Victoria’s Parliament House in Spring Street, where the senate met to elect a president and the House of Representatives. Detailed parliamentary business was left until 21 April 1901.
The members of the Barton Ministry after the first election were as follows:
An historical memento was published to record the Opening, known as “the Swan Souvenir”.
That complete document as provided by the National Library of Australia is here.
The booklet is titled Swan Souvenir – The Royal Visit to Australia
I became aware of this document as I discovered an original of it in family records earlier this year. That set me off to make enquiries, and the National Archives of Australia verified what the document was. The booklet is 25 x 15cm and has a soft fabric like cover with a knotted piece of string acting as the binder.
The Swan Souvenir includes the following photographs of note:
The Duke and Duchess of Cornwell and York
The Barton Ministry
The Royal procession on Princes Bridge
The Opening Ceremony inside the Exhibition Building
The Governor General, Lord Hopetoun and Countess Hopetoun.
As obtained from the National Archives of Australia, the following is the itinerary for the Governor-General and the Duke for Thursday, 9 May 1901:
His Excellency The Governor General will leave Government House at 11 o’c, and Their Royal Highnesses will follow him a few minutes later, to attend the Opening of Parliament. The Procession will proceed over the appointed route to the Exhibition Buildings.
The Ceremony will occupy about an hour, after which Their Royal Highnesses will return to Government House, followed by His Excellency’s carriage.
In the Evening, Their Royal Highnesses will leave Government Houe at 5 minutes to 9, and proceed via Princes Bridge, Flinders St, and Spring St to the Exhibition Building, to witness the State Concert given in their honour by the Commonwealth Government. They are due to arrive there at 9:15, and will remain there about 1.5 hours, leaving the Buildings at about 10:30 and returning by the same route to Government House.
Written by Nick Cave and released in their 10th studio album ‘the boatman’s call” in 1997.
The single was released on 7 January 1997.
Wikipedia says that in Cave’s lecture “The Secret Life of the Love Song” to the Academy of Fine Arts Vienna, he counts the song among those he is most proud of having written.
Cave said he wrote the song in rehab: “I was actually walking back from church through the fields, and the tune came into my head, and when I got back to the facility I sat down at the cranky old piano and wrote the melody and chords, then went up to the dormitory, sat on my bed and wrote those lyrics.” [Nick Cave and Sean O’Hagan (2022). Faith, Hope and Carnage. Farrar, Straus and Giroux. p. 51. ISBN 9780374607371.