FEDERAL COURT OF AUSTRALIA

Ingram, in the matter of 5Star Sinai Limited (administrators appointed) (No 2) [2018] FCA 1047

ORDERS

THE COURT ORDERS THAT:

1.    The informal application to re-open judgment [2018] FCA 734 be dismissed.

2.    There be no order as to costs of the informal application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

1    On 12 April 2018, the Court made orders under s 600H(1)(b) of the Corporations Act 2001 (Cth) in relation to leave to vote at second meetings of creditors of 5Star Sion Limited (administrators appointed) and 5Star Sinai Limited (administrators appointed) and reserved the question of whether Messrs Gyam Singh, Sumit Sethi and Rajesh Nair (Sion interveners), as non-parties, should be entitled to costs to be paid as costs of the administration of Sion. By an email dated 17 April 2018, the Court invited submissions as to the proper interpretation of s 563A(2) of the Corporations Act having regard to qualifications to the definition of “dealing” in s 766C(1) set out in subsequent subsections. Following a hearing on 18 April 2018, the Court published reasons for making the orders and declined to make costs orders in favour of the Sion interveners in relation to the hearing on either day: Ingram, in the matter of 5Star Sinai Limited (administrators appointed) [2018] FCA 734.

Application

2    The Sion interveners have made an informal application to the Court seeking to vary the judgment. While they do not seek to re-enliven the application for costs in respect of preparation for and attendance at the hearing on 12 April 2018, they wish to re-open the issue of whether an order should be made for their costs to be paid as costs of the administration of Sion in relation to preparation for and attendance at the hearing on 18 April 2018. They rely on the following arguments.

Sion interveners’ arguments

3    First, the application made by the administrators of Sion and Sinai for orders under s 600H(1)(b) was interlocutory and accordingly the Court has power to vary or set aside the judgment after it has been entered under r 39.05(c) of the Federal Court Rules 2011 (Cth). That proposition is uncontentious as the judgment related to an interlocutory matter.

4    Second, while the administrators opposed an order for costs being made in favour of the Sion interveners in relation to the hearing on 12 April 2018, they consented to an order being made for the Sion interveners’ costs of the hearing on 18 April 2018. The Sion interveners submitted that they were concerned that the Court might not have taken into account this consent in light of the language used at paragraphs [50] and [59]-[60] of the judgment. For convenience, set out below are paragraphs [50] and [57]-[60]:

50    At the hearings on 12 April and 18 April 2018, on behalf of the Sion interveners, Ms Rao sought an order for costs to be paid as costs of the administration of Sion. The administrators opposed costs being awarded in relation to Ms Rao’s appearance on 12 April 2018, but did not oppose an order being made in relation to her submissions dated 18 April 2018 and her appearance later that day. Mr McEwan did not seek an order for costs on behalf of the interveners who are said to be shareholders of Sinai at either hearing.

…

57    Mr Golledge opposed Ms Rao’s application for costs on 12 April 2018 on the bases that the Sion interveners undertook limited exposure to liability for costs when they applied to intervene and the assets available to creditors in the administration should not be required to bear the Sion intervener’s costs. He relied on the decision of Barrett J in Re Pan Pharmaceuticals; Selim v McGrath [2004] NSWSC 129 at [20]:

These considerations, coupled with the emphasis by members of the High Court in Knight’s case [Knight v FP Special Assets Ltd (1992) 174 CLR 178] on the extraordinary nature of the aspect of the general costs power that involves orders against non-parties, lead me to think that some very special factor outside the ordinary and expected course of events and engendering a justifiable expectation of compensation in the mind of the non-party would have to be found before any relevant aspect of the comprehensive jurisdiction with respect to costs might be regarded as properly and regularly invoked in favour of a non-party as against a party. In other words, such an award, if ever appropriate, will be extraordinary and exceptional. Someone who seeks and is granted leave under r 2.13(1) chooses a course entailing the limited costs exposure described in r 2.13(2). Such a person can have very little expectation of being awarded costs.

58    On 12 April 2018, Ms Rao noted that Brereton J had allowed such costs in [In the matter of SurfStitch Group Limited [2018] NSWSC 164]. Ms Rao also drew to the Court’s attention to correspondence between the lawyers for the administrators and the lawyers for those interveners on a range of matters. Ms Rao submitted that the application to intervene had been necessitated by the administrators’ failure to respond with sufficient clarity to their requests for information and that the interveners’ submissions had had an impact on the form of orders made.

59    I was not satisfied that it would be appropriate to make the order sought by Ms Rao in relation to the hearing on 12 April 2018 and decline to do so. I am not satisfied that the intervention was necessitated by the nature of the dealings between them and the administrators. I do not think that the perspective of the Sion interveners added materially to the Court’s consideration of the application on 12 April 2018. The mere fact that the Sion interveners appeared in their own interest and their submissions had some impact on the form of the orders does not, in the circumstances of this matter, justify burdening the administration with their costs of the application and hearing on 12 April 2018. I am persuaded that Barrett J’s reasoning in Re Pan Pharmaceuticals at [20] should be applied in the context, despite the fact that Brereton J made such an order in Surfstitch; I note that Brereton J gave no reasons for making that order despite the comprehensive way in which he dealt with other matters.

60    It is undoubtedly true that Ms Rao’s submissions filed on 18 April 2018 were of assistance to the Court in addressing the concerns raised with the administrators and the interveners. However, even though Mr Golledge advised that the administrators did not resist the order sought by Ms Rao, I am not satisfied that the order sought should be made. Although there are undoubtedly difficulties in the interpretation of ss 563A and 600H and the submissions filed on 18 April 2018 were required to address gaps in the material put to the Court on 12 April 2018, I am not persuaded that such an order is justified. I therefore decline to make an order that the Sion interveners’ costs be costs in the administration of Sion.

5    Dr Austin, counsel for the Sion interveners on this application, submitted that the following facts all raise relevant considerations: the administrators consented to a costs order being made in favour of the Sion interveners, the administrators acknowledged that the Sion interveners’ submissions were of “some substantial assistance” and the submissions were invited by the administrators. This submission was based on Mr Golledge’s contributions to the following extract from the transcript of the hearing on 18 April 2018 (emphasis added):

MR GOLLEDGE: Your Honour should, though - this is by agreement, at least between the administrators and [the Sion interveners]. Your Honour has reserved on the small item that we have about costs. However, the administrators accept that the contribution to today’s argument is a substantive one of the type recognised by Barrett J in [Re Pan Pharmaceuticals] that I handed up. And, your Honour, at the time of resolving the matter on which your Honour has reserved, and regardless of how that’s resolved, the administrators consent to an order that the costs of those persons for whom Ms Rao appears, as agreed or taxed, should be paid from the assets of Sinai and Sion as expenses in those administrations.

HER HONOUR: So costs of last Thursday as well as today or just today?

MR GOLLEDGE: No, it’s just today, your Honour.

HER HONOUR: Okay.

MR GOLLEDGE: I maintain - - -

HER HONOUR: I just wanted to have it made clear.

MR GOLLEDGE: Yes. I maintain the argument about that, but there has plainly been some - and, indeed, we invited it - some substantial assistance of the type that Barrett J recognised brings it within the exceptional or extraordinary category of a non-party obtaining a costs order.

MS RAO: I’m grateful to my friend. I would simply press my application for costs of last week. In my submission, it would be very artificial to try and draw a distinction between what happened last week and today. I attempted to take your Honour to recent correspondence. The correspondence is very static in the affidavit, but when your Honour - - -

HER HONOUR: I don’t want to go over last Thursday.

MS RAO: No, but when your Honour reads it, you will see, in my submission, that - and I don’t wish to be critical of anyone, but there has been, perhaps, less precision in consideration of all of the matters that we have now addressed on the part of the administrators in their correspondence. And we would have been in a position to grapple with these issues, and to set out what our clients’ positions were if we had had a more helpful dialogue with the administrators.

HER HONOUR: I understand. Thank you.

6    Third, Dr Austin then submitted that this case should be differentiated from Re Pan Pharmaceuticals on the basis that the intervener’s submissions in Re Pan Pharmaceuticals were made in its own interests and there was no “value added” element. Dr Austin submitted that the Court’s observations made at [60] indicate that there was “value added” from the submissions made by Ms Rao on 18 April 2018. He says that courts order costs in favour of a non-party in cases where the submissions are useful to the court, even where the submissions made reflect the interests of the intervener. He relied on the following authorities:

(1)    In Re HIH Casualty and General Insurance Ltd (2006) 58 ASCR 1; NSWSC 504 (HIH scheme approval judgment), Barrett J was called upon to consider whether a scheme of arrangement should be approved with or without conditions. At [15] his Honour described the intervener’s submissions as being “central to the identification of the class-creating and non-disclosure difficulties” and that in the absence of those submissions “the point would not have been appreciated and a scheme that suffered from defects might well have been approved by the court”.

(2)    In an earlier judgment, Re HIH Casualty and General Insurance Ltd [2006] NSWSC 6 (HIH costs judgment), Barrett J considered whether to make an order for costs in favour of non-party interveners who had interests in different aspects of the scheme having regard to s 562A of the Corporations Act and s 116 of the Insurance Act 1973 (Cth). Dr Austin drew the Court’s attention in particular to paragraph [14] but it is instructive to look at the reasoning at paragraphs [12]-[14] as follows:

12    It is fair to say, I think, that there were, in submissions before the court in the earlier stages of the proceedings, differing approaches to the compliance questions involving s.562A and s.116. There were also inconsistencies between the stances taken on legal issues in the various submissions. The questions were complex. Some of the answers given may yet require revision following judgment in the appeal in AssetInsure Pty Ltd v New Cap Reinsurance Corporation Ltd [2005] HCATrans 990 and 991 heard by the High Court on 7 and 8 December 2005. The submissions of all who made them - including Amaca/Amaba and Hazelwood/Latrobe - were of considerable value to the court and contributed in a material way to the formulation of a proposal in respect of which the court was ultimately willing to make orders under s.411(1). I intend no disrespect to ASIC when I say that its submissions, valuable and helpful as they were, would not alone have produced the outcome that eventually emerged. Nor, I think, would the individual submissions of any other entity appearing by leave. The outcome was one reached with the very great assistance provided by all submissions.

13    The materiality of their participation is, in the submission of Amaca/Amaba and Hazelwood/Latrobe, something that sets them apart from the creditors who applied unsuccessfully for costs in Pan Pharmaceuticals. Two of those creditors (Faulding and the Guild), in contrast to those with which I am here concerned, appeared to support or reinforce positions for which parties contended on the basis of full argument. They did not, in essence, add any special dimension to the store of material on the basis of which the court reserved its decision. Amaca/Amaba and Hazelwood/Latrobe, by contrast, made independent and separate submissions that proved highly relevant to the task of the court in reaching its decision.

14    I have come to the conclusion that the particular circumstances of this case warrant a costs order in favour of creditors who appeared by leave under rule 2.13(1) and now seek costs. They played the part of vigorous contradictors and while, to some extent, their role paralleled that of ASIC, they also put before the court matters of importance (generated by their own particular interests) which it is quite possible would otherwise not have been available. The issues were novel and complex. The court required assistance in many areas. In some of them, the parties exercising leave under rule 2.13 (1) were the principal source of that assistance. I accept the submissions of Amaca/Amaba and Hazelwood/Latrobe in these respects and am satisfied that special and unusual circumstances warranting a costs order have been shown.

7    Dr Austin also referred to Fletcher and Barnet, in the matter of Octaviar Ltd (receivers and managers appointed) (in liq) and Octaviar Administration Pty Ltd (in liq) (No 4) [2012] FCA 344 at [12] (Octaviar). In that case, Emmett J commences by acknowledging the power of the Court under s 43 of the Federal Court of Australia Act 1976 (Cth) to order costs in favour of a non-party and ends that paragraph by recognising that a person who seeks and is granted leave under r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) can have little expectation of being awarded costs. Dr Austin emphasised that, at [21], Emmett J recognised that, but for the intervention, there would have been no contradictor. Dr Austin accepted that it would be inappropriate to characterise the Sion interveners as contradictors; they supported the orders sought by the administrators. However, he noted that the Sion interveners acted in response to the Court’s request for submissions to clarify the meaning of s 563A of the Corporations Act to supplement submissions made on 12 April 2018 and the Court acknowledged that it found the submissions helpful.

8    In response to a query from the Court, Dr Austin advised that the Sion interveners’ costs of 18 April 2018 were in the order of $10,000 and he submitted that there were some quite sophisticated and complex matters of research which needed to be addressed and both counsel and instructing solicitors were involved in it.

Administrators’ arguments

9    Mr Golledge submitted that he appeared as a contradictor on the matter of whether the judgment in this matter should be varied or set aside. Mr Golledge acknowledged that, on 18 April 2018, the administrators consented to the Court making an order in favour of the Sion interveners for their costs in respect of responding to the Court’s email inviting submissions on the meaning of s 563A(2) in light of the whole of s 766C (not simply s 766C(1)). While it was not clear to counsel whether judgment had been entered or not, he submitted that the position was now different from the time at which submissions were made on 18 April 2018, because judgment had been rendered. He emphasised that the power to vary or set aside a judgment was a limited one. Counsel noted the Court’s indication at the commencement of this hearing that, despite the use of the phrases “did not oppose” at [50] and “did not resist” at [60], the Court had been fully aware that the administrators consented to costs orders being made in the Sion interveners’ favour in relation to the questions considered on 18 April 2018. In those circumstances, the power to vary or set aside the judgment should not be exercised because there was no mistake of fact or law on which to base the exercise of the discretion.

10    Mr Golledge drew the Court’s attention to the discussion of principles by Barrett J in Wentworth v Rogers [2002] NSWSC 921 [7]-[9]. At [7], Barrett J noted those principles derived from High Court authority relevant to the re-opening of cases by appellate courts and the caution to be exercised by them such that the power should only be exercised in “extremely rare” or “quite exceptional” circumstances. In deciding whether to exercise that power, the Court takes into account whether the appellant has shown that, without accident or fault on the appellant’s part, he or she has not been heard on a relevant issue and whether there is an error in the court’s reasoning because of some misapprehension of fact or law. In considering the exercise of the power by first instance judges to re-open judgment before it is entered, at [8] Barrett J cited extensively from the useful summary of principles and cases provided by Santow J in Wentworth v Wentworth [1999] NSWSC 638. At [9], Barrett J summarised the principles in one proposition as follows:

… that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. …

11    Next, Mr Golledge took the Court to the Full Court’s decision in Davis v Insolvency and Trustee Services Australia (No 2) (2011) 190 FCR 437; FCAFC 9 (Davis) at [6] as follows:

The principles surrounding the court’s power to review its own judgment before its perfection are clear: “[w]hat must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; 111 ALR 385 at 387 (Autodesk) per Mason CJ. Because of the importance of the public interest in the finality of litigation, it is a jurisdiction “to be exercised with great caution”: at CLR 302; ALR 286. The onus is on the applicant to demonstrate that he or she has not been heard: Autodesk at CLR 302; ALR 386 citing Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684l 42 ALR 240 at 241 per Mason ACJ, Wilson and Brennan JJ.

Counsel acknowledged that subsequent cases have not required the applicant to be “entirely blameless”.

12    Mr Golledge submitted that, accepting that the Court understood the administrators to have consented to the costs order being made in the Sion interveners’ favour in relation to the 18 April 2018 appearance, there was no error of fact or law in the exercise of the Court’s consideration of the matter because the question was not whether the administrators consented but whether the estate should be burdened. This was not inter partes litigation in which consent might be critical; this was a case where the affected parties were not before the Court. Counsel submitted that the onus was on the Sion interveners to persuade the Court that this was a proper case for a costs order to be made.

13    Mr Golledge relied on the fact that, at [55] and [56] of the judgment which the Sion interveners seek to review, the Court found that their submissions were “wholly directed to supporting the administrators’ application” and that they “sought only to make submissions in relation to orders under s 600H which would directly affect their interests”. While those remarks were made in relation to the hearing on 12 April 2018, Mr Golledge submitted that the reasoning at [60] properly applied the same principles.

14    Noting the importance placed on the finality of litigation and the onus placed on the applicant by the Full Court in Davis at [6], Mr Golledge submitted that the crux of the matter was whether or not the Sion interveners had been heard. That is, the onus is on them to demonstrate that their argument was misunderstood or overlooked or that they had not been able to put it. He submitted that none of that had been demonstrated but rather what they now sought to put was a better or more comprehensive argument. He relied on the Full Court’s decision in Grimaldi v Chameleon Mining NL (ACN 098 773 785) (No 2); Chameleon Mining NL (ACN 098 773 785) v Murchison Metals Ltd (ACN 078 257 799) (2012) 87 ACSR 260; FCAFC 6. At [771], the Full Court notes an apparent error of principle in the approach of the primary judge generated by the failure of either party to take his Honour to a relevant authority. Mr Golledge relied on the following passages at [772]:

... There is no doubt, as Mr Bell SC correctly stressed, that the jurisdiction to re-open orders is sparingly to be used … The procedure contemplated by r 39.04 (and indeed the undoubted inherent power of a superior court of record to do the same thing) must not be permitted to become an avenue whereby disappointed litigants (or their advisers) are permitted, in effect, a second chance before the trial judge.

Mr Golledge noted that the reasons expressed for that finding go not only to the principle of finality but also to public confidence in the administration of justice and, importantly, not putting parties to unnecessary costs. Counsel then relied on the following passage at [773]:

For that reason, mere error is not a sufficient touchstone of the jurisdiction at the instance of a disappointed party. “What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”: Autodesk at CLR 303; ALR 387 per Mason CJ. That statement is not the same as the notion that re-opening will be permitted only to a party who is blameless. That stricter standard was rejected by Mason CJ in Autodesk at CLR 301-2; ALR 386: “The exercise of the jurisdiction to re-open a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant’s part, he or she has not been heard”. Although Mason CJ was in dissent, the correctness of that statement has been accepted by a majority of the High Court in Aktas v Westpac Banking Corp Ltd (No 2) (2010) 241 CLR 570; 273 ALR 118 at [6].

15    Mr Golledge submitted that none of the cases to which the Court was taken by Dr Austin went to the anterior question of whether there had been some mistake of fact or law on the basis of which the judgment should be re-opened and submitted that, in the interest of protecting the estate subject to administration, it should not be re-opened.

16    On the “anterior question”, Dr Austin relied on the decision of the Full Court in Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [77]. There, the Full Court noted that the power to set aside judgments or orders that have been entered should only be exercised in limited circumstances so as to uphold the principle that there must be some finality in litigation, but went on to say:

… But even that principle must yield in the appropriate case to the interests of justice. The courts have an inherent power (in this Court an implied power) to set aside a judgment after it has been entered where there has been a miscarriage of justice: Taylor v Taylor (1979) 143 CLR 1. Circumstances in which a court will vary or set aside an order that has been entered are identified in [the predecessors of r 39.05] but those paragraphs should not be understood to be the only circumstances in which the court would exercise such a power.

17    Dr Austin submitted that in circumstances where Mr Golledge, for the administrators, as the party which would respond to the application for costs by the Sion interveners, consents to the order being made, it was not unreasonable for the Sion interveners (or their legal adviser) to take the view that it was not necessary to address that issue as fully as would be the case if it was opposed or even where the administrators had neither opposed nor consented and left it to the Court to decide. In either of those cases, counsel for the Sion interveners would have taken the Court to the authorities relied on by Dr Austin. An issue of unfairness was said to emerge in these circumstances.

18    Dr Austin submitted that, contrary to submissions made by Mr Golledge, there was a distinction between the circumstances on 12 and 18 April 2018 because the Court recognised at [60] that it was “undoubtedly true that Ms Rao’s submissions filed on 18 April 2018 were of assistance to the Court in addressing the concerns raised with the administrators and the interveners”.

Consideration

19    Rule 39.04 gives the Court discretion to vary or set aside a judgment or order before it has been entered and r 39.05(c) gives the same discretion in the case of an interlocutory judgment or order. As the judgment relates to an interlocutory application, it is unnecessary to consider whether the judgment was entered or not, although in my view it has been.

20    There is infelicity in the expressions used at [50] and [60] that the administrators “did not oppose” or “did not resist” the Court ordering that the Sion interveners’ costs in relation to submissions addressing issues raised by the Court at the hearing on 18 April 2018 be costs in the administration. The fact that the administrators invited the Sion interveners to make submissions is not recognised in the judgment and that matter may have been overlooked.

21    However, I do not accept that either of those matters are sufficient reason to exercise the discretion to re-open the judgment in this case. I do not accept that there has been a miscarriage of justice or that it was or is appropriate to make an order for costs in favour of the Sion interveners in relation to the hearing on 18 April 2018.

22    First, despite the infelicity in the wording of paragraphs [50] and [60] of the judgment, the Court was fully seized of the fact that the administrators consented to a costs order being made in relation to that day but that they opposed costs related to the hearing on 12 April 2018.

23    Second, the only reference to the administrators’ invitation to the Sion interveners to make submissions in response to the matters raised by the Court in its email of 17 April 2018 is the aside made by Mr Golledge. That aside is marked in bold in the extract of the transcript from 18 April 2018 quoted at [5] above. Read as a whole, Mr Golledge was not relying on the fact that the administrators had invited the submissions, but rather counsel was submitting that the “substantial assistance” provided by Ms Rao’s submissions of 18 April 2018 was what brought the claim to costs of that day within the “exceptional” and “extraordinary” category recognised by Barrett J in Re Pan Pharmaceuticals. It was for the Court to accept or reject that submission.

24    Third, the Sion interveners did not seek to be heard on that issue on 18 April 2018, as can be seen from the extract from the transcript. Dr Austin submitted that it was reasonable for counsel for the Sion interveners to take the view that it was unnecessary to address the issue as fully as would occur in a case in which there was opposition or where the administrators had simply not opposed the order and left the Court to decide. I do not accept that submission. While it might not be expected that the counsel for the Sion interveners would have laboured the point, it was nonetheless appropriate for them to make submissions to make their case for reasons set out below.

25    This was not inter partes litigation; the administrators’ consent was not the end of the matter. It was for the Court to decide whether there was some “very special factor” which justified departure from the usual position with respect to the making of costs orders in favour of non-parties. While Mr Golledge made assertions that this was a matter within the “exceptional” / “extraordinary” category because the submissions provided “some substantial assistance”, he did not take the Court to any similar circumstance where a non-party had been awarded costs while not acting as a contradictor and the reasoning adopted by a court in that case. These are matters on which the Sion interveners might be expected to have provided assistance going beyond Mr Golledge’s submissions.

26    Further, while Mr Golledge correctly conceded on 18 April 2018 that Ms Rao’s written submissions dealt with the issue raised by the Court on 17 April 2018 more thoroughly than did the administrators’ written submissions – and they were therefore of greater assistance to the Court – the complexity in the interpretation of s 563A(2) by reference to s 766C was identified by the Court, not the interveners. The submissions were required to fill a gap in matters raised with the Court on 12 April 2018. The administrators also made written and oral submissions on the point and did not leave it to the interveners to carry the load. I do not accept that that is a circumstance which justifies departing from the usual position with respect to the costs of the Sion interveners.

27    Fourth, (and at the risk of repetition) the extent of the assistance given to the Court in relation to relevant caselaw on awarding costs to an intervener was limited to very brief oral submissions. Mr Golledge made submissions in relation to the application of the decision in Re Pan Pharmaceuticals at the hearings on 12 and 18 April 2018 but referred to no other case. On 12 April 2018 Ms Rao relied on the fact that Brereton J made an award of costs in favour of a non-party in In the matter of SurfStitch Group Limited [2018] NSWSC 164. However, as Brereton J did not give reasons for doing so, that did not advance the Court’s consideration of the principled position. Ms Rao made no submissions in relation to the Sion interveners’ costs of 18 April 2018, relying entirely on Mr Golledge’s submissions set out above. The arguments now put by Dr Austin constitute better argument on the matters the Court might take into account in the exercise of the discretion to award costs to a non-party, but that is not a proper basis on which to re-open the judgment.

28    Further, it might be expected that an intervener’s submissions would provide assistance to the Court; hopefully that is the usual case. Dr Austin’s arguments are ultimately not persuasive because the cases cited at [6] and [7] above in which an intervener obtained costs are all cases where the intervener was a contradictor whose submissions shaped the outcome, albeit that the submissions were made to advance that intervener’s cause. In the HIH scheme approval judgment, Barrett J recognised that the role of the interveners had been “central” to the shaping of the scheme and without those submissions the court might have approved a defective scheme. In the HIH costs judgment, Barrett J found that no single party’s submissions identified all issues in a complex matter, some aspects of which remained to be settled by the High Court in other proceedings. In Octaviar, the intervener was found to have sufficient interest to appeal a first instance decision and its actions resulted in that judgment being set aside. In contrast, the Sion interveners made submissions in support of the position put by the administrators and it was the Court that identified the complexity in the interaction of ss 563A and 766C.

29    In her submissions made on 18 April 2018, Ms Rao suggested that it would be “very artificial” to draw a distinction between what happened on 12 April 2018 and what happened on 18 April 2018 because of the correspondence on which she had sought to rely on 12 April. This has the appearance that Ms Rao was seeking to leverage the administrators’ consent to costs on 18 April 2018 to argue for costs of the 12 April 2018 hearing.

30    As mentioned in the judgment, I did not accept that the correspondence justified a costs order in favour of the Sion interveners being made in relation to the hearing on 12 April 2018. For a different reason, I agree with Ms Rao that the position was not materially different on 18 April 2018. The administrators and the interveners were invited by the Court to make submissions in relation to the complexities of the interaction of ss 563A and 766C because it was a gap in the submissions made on 12 April 2018. Such a gap might well have been identified by a contradictor, but it was not identified by the Sion interveners who supported the administrators’ application.

Conclusion

31    For the foregoing reasons I am not satisfied that the Court’s discretion to re-open the judgment should be exercised and the informal application made by the Sion interveners should be dismissed.

32    It is not necessary to consider whether it would be appropriate to make an order as to costs in relation to the informal application as both the administrators and the Sion interveners indicated that no such application was made.

Associate:

Dated:    12 July 2018