Federal Court of Australia

Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 4) [2022] FCA 1575

ORDERS

THE COURT ORDERS THAT:

1.    The orders and directions sought by the Second Applicant in the “Applicants’ Proposed Orders and Directions” dated 10 May 2022, included as an Appendix to the Court’s reasons in Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 are refused.

2.    The proceeding as against the Twelfth and Thirteenth Respondents (together, ‘Grocon’) is dismissed with costs.

3.    The application for summary judgment by the Third to Fifth and Thirtieth Respondents filed 7 June 2021 is dismissed with costs.

4.    Leave is granted for the Applicants to rely on an Amended Reply dated 6 July 2022 to the Fifteenth Respondents’ Amended Defence dated 17 May 2022, other than paragraphs 5 to 9 and 11,

5.    The Applicants pay the Fifteenth Respondent’s costs of and incidental to the Applicants’ application for leave to file an Amended Reply dated 6 July 2022 as against the Fifteenth Respondent.

6.    The proceeding is dismissed in relation to:

(a)    the claims against the First and Second Respondents (‘Multiplex’) referred to in the Further Amended Points of Claim lodged for filing on 22 March 2022;

(b)    the claims against the Third Respondent (‘Lendlease’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(c)    the claims against the Fourth and Thirtieth Respondents (‘Baulderstone’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(d)    the claims against the Fifth Respondent (‘Abigroup’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(e)    the claim against the Seventh Respondent (‘Badge WA’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(f)    the claims against the Eighth Respondent (‘Badge Qld’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(g)    the claims against the Fourteenth Respondent (‘Hansen Yuncken’) referred to in the Further Amended Points of Claim filed pursuant to leave granted by Middleton J on 30 March 2022;

(h)    the claims against the Tenth Respondent (‘CPB’) referred to in the Further Amended Points of Claim filed on 6 April 2022;

(i)    the claims against the Nineteenth Respondent (‘Thiess’) referred to in the Amended Points of Claim filed 5 March 2021;

(j)    the claims against the Fifteenth Respondent (‘John Holland’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(k)    the claims against the Sixteenth Respondent (‘Laing O’Rourke’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(l)    the claims against the Twentieth to Twenty-Third Respondents (‘Watpac’) referred to in the Further Amended Concise Statement lodged for filing on 26 February 2021;

(m)    the claims against the Twenty-Fifth Respondent (‘Scentre’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021,

as particularised in Appendices 1-4 to this Order.

7.    The Applicants and each of the Respondents (save for Grocon) are to attend a mediation on or before 31 March 2023:

(a)    separately from any other Respondent in the proceeding; or

(b)    together, if any Respondents agree to attend together and if the Applicants also agree.

8.    Following the mediation(s), the Applicants and Respondents (save for Grocon) must report back to the Court by no later than 14 April 2023.

9.    The proceeding be listed for a case management hearing on a date to be fixed before the docket Judge.

10.    The costs ordered by paragraph 11 of the orders of the Court made 29 January 2021 are taxable immediately.

11.    The Applicants are to pay the Respondents’ costs of and incidental to the claims of the Applicants dismissed by paragraph 6 of these orders referred to in Appendices 3 and 4 to these orders.

12.    The costs of and incidental to the proceeding are otherwise reserved including the costs of the discovery applications referred to Registrar Gitsham and determined on 24 December 2021.

13.    Subject to paragraph 14 of these orders, the costs ordered by paragraph 11 of these orders are to be taxed immediately.

14.    If Multiplex, Laing O’Rourke or Scentre elect by notice in writing to the Applicants on or before 31 March 2023 to pursue an indemnity costs order on the basis of any offer of compromise or Calderbank offer once the main proceeding is finally determined instead of enforcing paragraphs 11 and 13 of these orders, their costs will be reserved.

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

Appendix 1

Receivables Case – statute-barred claims per Liability Reasons [88], [114]-[115]

Appendix 2

Receivables Case and Bank Guarantee Case – claims no longer pressed by Applicants

Appendix 3

Bank Guarantee Case – Amounts drawn down under bank guarantees

Appendix 4

Bank Guarantee Case – Order sought for return of bank guarantees

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The Plaintiffs are to pay the costs of and incidental to this proceeding of any Respondent in proceeding VID1277 of 2017 which was granted leave to appear in this proceeding or which filed submissions in this proceeding.

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

REASONS FOR JUDGMENT

MIDDLETON J:

Introduction

1    These reasons concern the final orders arising out of the Liability Reasons I delivered on 2 November 2022 in Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 (‘J’). Unless defined in these reasons, capitalised terms used are as defined in the Liability Reasons.

2    In orders accompanying the Liability Reasons, I ordered that the parties confer and then file and serve any agreed minutes of orders reflecting the reasons of the Court on 18 November 2022, or in default of agreement, separate minutes of orders and short written submissions. The parties were unable to agree on final orders reflecting the Liability Reasons, and so the Applicants and each of the Respondents filed separate proposed minutes of orders with accompanying submissions.

3    Each of the Respondents’ proposed minutes of orders were in a similar form. In short, the main proposed orders the Respondents sought were as follows:

(a)    dismissal of the Liquidator’s “Application for Advice and Directions” at the end of the liability trial, being the proposed relief sought by the Applicants in the liability trial (to be distinguished from the final relief sought in the Applicants’ Second Further Amended Originating Process dated 3 March 2021);

(b)    dismissal of the parts of the Applicants’ pleaded claims against them which have been finally determined by the Court in the Liability Reasons;

(c)    that costs of and incidental to the liability trial in the main proceeding be taxed forthwith, including on an indemnity basis as to:

(i)    the Applicant’s claims in its Bank Guarantee Case which are dismissed in these orders; and

(ii)    costs incurred by certain Respondents (Multiplex, Laing O’Rourke and Scentre) after a certain date on which those Respondents submitted a “Calderbank offer” or offer of settlement had been made; and

(iii)    in the primary submissions of Hansen Yuncken, Badge and John Holland, costs incurred of and incidental to the liability hearing as a whole.

(d)    for mediation as between the Applicants and each Respondent and if the relevant issues were not resolved by mediation, referral of the unresolved questions in the Lists of Issues to a referee; and

(e)    dismissal of the winding up proceeding with costs.

4    Apart from also seeking an order for mediation, the Applicants’ proposed orders were diametrically opposed to the Respondents. The main proposed orders the Applicants sought were as follows:

(a)    a declaration that each Hastie Entity has a right to return of surplus proceeds of the bank guarantees drawn down by each Respondent (that is, such amounts draw down by each Respondent greater than the amount required to meet each Respondent’s claims against the relevant Hastie Entity);

(b)    that a separate question be heard by the Court as to the construction and operation of the particular contractual terms and factual circumstances underlying each project as part of its Receivables Case, for the purposes of which the Applicants sought orders for:

(i)    the tendering of certain affidavits to be relied upon by the Applicants;

(ii)    the filing and service of any affidavit to be relied upon by the Respondents, and;

(iii)    the discovery of documents by each Respondent;

(c)    that costs in the main proceeding be reserved;

(d)    for a mediation conference as between the Applicants and the Respondents; and

(e)    that the winding up proceeding be stayed pending final orders in the main proceeding, with costs reserved.

5    It became necessary after receiving the written submissions of the parties to have a further case management hearing on 23 November 2022 and then to receive further written submissions. After hearing from the parties at that case management hearing where the parties addressed the proposed final orders, receiving those further submissions as to costs, and considering all the written submissions, I have decided to make orders reflecting the Liability Reasons largely in the form proposed by the Respondents, except as to indemnity costs. I shall state my reasons for each of these orders and also address the orders proposed by the Applicants which I have declined to make.

Preliminary remarks

6    Before I turn to my reasons for making the orders that I do in the main proceeding (VID1277 of 2017) and winding up proceeding (VID237 of 2022), it is convenient to recall some important matters as to the way the main proceeding progressed by reference to my Liability Reasons.

7    First, it is important to recall the nature of the liability trial, the Common Issues to be resolved at that trial, the importance of the pleadings, and the relief sought by the Liquidator at that trial:

[28]    The relief sought under the Applicants’ Second Further Amended Originating Process filed on 3 March 2021 consisted of orders that each Respondent pay to the Applicants certain amounts claimed in the respective Points of Claim. However, the trial of the main proceeding was split between liability and quantum by orders made on 1 October 2021, so that the trial commencing on 15 March 2022 only concerned the liability issues.

[29]    Given this bifurcation of the proceeding, the relief sought by the Applicants at this liability trial differed from the orders sought in the Second Further Amended Originating Process, and instead the relief sought was in the form of orders and directions to the Liquidator as to the winding up of the Hastie Entities. I will discuss these later in this section. However, it is important not to lose sight of the ultimate aim of the Liquidator in commencing and continuing these proceedings: namely, to recover money so as to be distributed in accordance with the Act.

…

[57]    As part of the case management of the main proceeding, the parties were asked to agree and file a List of Issues in respect of each group of Respondents. From the Court’s point of view, this was to focus the collective minds of all those participating in the liability trial on the main issues really in dispute. However, at all times it was made clear that the ultimate determination of the issues in dispute ought to be resolved by the “pleadings” (I use quotations here because of the quasi-pleading status of concise statements and points of claim in this Court). Nevertheless, when the trial of the main proceeding was split between liability and quantum by orders made on 1 October 2021, those orders referred to the various Lists of Issues filed in respect of each group of Respondents. Whilst there are some issues which pertain only to particular Respondents, the common issues for the liability trial in the main proceeding were as follows (as summarised in the Applicants’ closing submissions, and which I will refer to in these reasons as the ‘Common Issues’). Because of those orders made on 1 October 2021, a number of the issues in the various Lists of Issues were not to be determined at the liability trial, including issues as to the amount of any alleged set-offs or as to the final quantum of each claim.

…

[76]    The orders now sought by the Applicants at this liability trial are annexed to these reasons as an Appendix. I shall summarise the orders as sought below. It is appropriate to focus on these orders now sought as to determining the future conduct of the main proceeding. However, in determining whether there is any liability to the Hastie Entities, and as I have stressed already, the basis of analysis must be upon the pleadings, assisted by the various Lists of Issues and the submissions finally adopted by the Applicants.

8    Second, I gave the following explanation as to the relief sought by the Liquidator at the end of the liability trial in the Proposed Orders and Directions dated 10 May 2022, which was included as an Appendix to the Liability Reasons:

[444]    The relief the Liquidator now seeks is at the Appendix to these reasons.

[445]    Despite the protestations of the Respondents, this proceeding has always been about seeking to recover a debt (the “receivables”) and recover the proceeds of the guarantees drawn down. The Liquidator seeks the relief for these sums in the name of the Hastie Entities. Subject to any quantification or other issues that remain, the main proceeding was the vehicle chosen by the Liquidator.

[446]    Then as a separate claim, the Liquidator himself relies upon a number of statutory provisions seeking various directions, guidance or advice. As a general proposition, I accept that there is a wide jurisdiction and power in the Court to make orders and give directions to assist liquidators.

9    I then determined that each of the proposed orders and directions sought by the Applicants was inappropriate: J[450]-[453].

10    Third, and this is important to keep steadfastly in mind when considering the relief now to be granted, the Bank Guarantee case was an “all or nothing” case. I will return in more detail to this matter. The claims in relation to the Bank Guarantee Case were confined to the matters specifically raised in the Applicants’ relevant Amended Points of Claim or Further Amended Concise Statements referred to in the Second Further Amended Originating Process. I stress again that it was these documents that set out comprehensively and exclusively the matters in dispute in the proceeding. The “Applicants’ Proposed Orders and Directions” included as an appendix to the Liability Reasons related only to the liability trial. No amendment to the Applicants’ Second Further Amended Originating Process was sought or made in light of the “Applicants’ Proposed Orders and Directions”.

11    As I stated at J[458], I proposed to refer any remaining issues relating to the operation of the relevant contractual terms and the calculation of set-off and quantum to an appropriately qualified referee or referees. The question arises as to the appropriate time for such a referral to occur, and the appropriate terms of referral. I will also return to this issue later.

Section 1305 of the Corporations Act

12    The Applicants in their submissions referred to the effect of s 1305 of the Corporations Act 2001 (Cth) (the ‘Corporations Act’ or ‘Act’) in the main proceeding, relying on the dicta of Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1; [2009] NSWSC 1229 (‘Rich’) at [396]-[400].

13    I referred to s 1305 of the Act in the Liability Reasons at J[220]-[222]. In light of some of the submissions of the parties (particularly the Applicants), I will highlight certain matters here just to make the position clear for the future conduct of the proceeding.

14    The highlighted matters I consider should be kept in mind are emphasised below in the discourse of Austin J in Rich (my own emphasis):

[395]    The defendants referred to the definition of the words “prima facie” in the Macquarie Dictionary (2nd revised ed), as meaning “at first appearance; at first view, before investigation”. They compared that with the definition of “prima facie evidence” as “evidence sufficient to establish a fact, or to raise a presumption of fact, unless rebutted”. They submitted that the former meaning is the one intended in s 1305, and that the words “prima facie” are not used in the sense that, absent some satisfactory contrary evidence on the part of the defendants, the matters said to be recorded in the books have been conclusively proved.

[396]    In my view the true meaning of the words “prima facie” lies between the alternatives identified in the defendants’ submission. The statement in s 1305(1) that the company’s books are prima facie evidence of a matter stated or recorded in them does more than merely to convey that they are the starting point to proof or a “first view”. All other things being equal, the fact that a matter is stated in a book kept by a company is sufficient to prove that matter in civil proceedings. That does not reverse the onus of proof in the proceedings in any general way, but it means that the tendering of the book is evidence of the matter recorded in it, and that matter will be thereby proven unless other evidence convinces the tribunal of fact to the contrary, on the balance of probabilities.

[397]    Section 1305(1) does not make the company’s books conclusive evidence of the matters they contain, in the sense of requiring the tribunal of fact to make a finding in terms of the content of the books in the absence of proof to the contrary by the opposing party. The books are prima facie evidence of the matters stated in them, but the weight of that evidence is to be measured in accordance with the common sense of the tribunal of fact (Malek HM, Auburn J, Bagshaw R, Phipson on Evidence (16th ed, Sweet and Maxwell, 2005), at [7-17]).

[398]    In my view it would be open to the tribunal of fact to find that the prima facie evidence constituted by the company’s books is outweighed by other evidence (including evidence adduced by the proponent of the books, even if the opponent does not give evidence about them); or by some quality or characteristic of the books themselves, even if there is no other evidence. In particular, if a book has the appearance of a draft or (being electronic) has a file title indicating that it is a draft, that alone may be sufficient (all other things being equal) for the tribunal of fact to reject the book as evidence of the matter stated in it, notwithstanding that the book is prima facie evidence of that matter; a fortiori if, in addition to having the appearance of a draft, the book contains inconsistencies or ambiguities or the matter otherwise demands explanation.

…

[400]     Therefore s 1305(1) allows a company’s books to be introduced into evidence as they are, without any “authenticating” evidence by any witness, and allows the books to be relied upon to prove transactions recorded in them. But it does not elevate the matters contained in the books to a plane of probative value that requires the court to disregard the context in which the matters relied on appear in the tendered document. If, for example, there is some doubt as to whether a particular transaction is “recorded” in a book because of some uncertainty about the status of the document or ambiguity about what it contains, s 1305(1) does not overcome the problem.

15    Therefore, there may be many circumstances that impact on the actual application of s 1305. So when at J[222] I say that it is on the Respondents to show that the records relied upon by the Applicants are unreliable, or to demonstrate any circumstances that may give rise to the debt claims not being validly claimed in the main proceeding (by reference to the terms of the subcontracts), I do not mean to reverse any legal onus. All I am referring to is that the Respondents will need one way or other (if they so desire) to at least show that the reliance on s 1305 (even if applicable) does not prove on the balance of probabilities the debt claims of the Hastie Entities. The Applicants and all the Respondents will have the opportunity to put the records relied upon by the Applicants in context, or lead other evidence to show that the debt claims are valid, or on the other hand to show that the debt claims are not being validly claimed (for instance, by reference to the terms of the sub-contracts).

16    As an example of the operation of s 1305, in Carter v Federal Commissioner of Taxation (2020) 279 FCR 83, the existence of the minutes sought to be relied upon was only first asserted, in relation to the tax assessments which were the subject of those proceedings, after the proceedings had been commenced in the first instance. That fact was a circumstance capable of affecting the prima facie position established by s 1305, assuming s 1305 applied. So in those circumstances, any presumptions afforded to the minutes signed by chairs of meetings did not assist. In that proceeding, the consideration of the whole of the evidence meant it could not be concluded that there were meetings purporting to distribute the income the subject of controversy as purportedly indicated in the minutes. There was also the fact that there were two different versions of the relevant minutes which could give rise to significant doubt as to their probative value, as both sets of minutes could not have been correct, prima facie or otherwise.

The main proceeding

17    I will now explain my reasons for the orders I now make in the main proceeding, including my reasons for declining to make certain orders proposed by the Applicants.

Refusal of relief sought by Liquidator

18    Each of the Respondents seek an order that the application for advice and directions sought by the Liquidator in the Applicants’ Proposed Orders and Directions dated 10 May 2022 be dismissed.

19    The Applicants resisted such an order on the basis that their proposed orders and directions were not formally an application, and that no amendment had been made to their Second Further Amended Originating Application.

20    I accept that the Applicants’ Proposed Orders and Directions were not made by formal originating process in relation to the whole of the main proceeding. However, they did reflect the relief that the Applicants were seeking at this stage of the proceeding, being the liability trial. While there is no formal application for the Court to dismiss, it is appropriate that the orders of the Court formally refuse the granting of the relief sought by the Liquidator at the liability trial, consistent with my finding in the Liability Reasons that each proposed order in the Liquidator’s Proposed Orders and Directions was inappropriate (see J[450]-[453]).

Dismissal of Lendlease’s summary judgment application

21    It is not in dispute between the parties that Lendlease’s application for summary judgment is to be dismissed in light of the Liability Reasons. I therefore will dismiss the application for summary judgment, with costs following the event.

22    Lendlease submitted that no real additional costs were incurred with respect to the application for summary judgment and that, in any event, the application was rejected on case management grounds in circumstances where the bank guarantee claims failed on a final basis: J [426]-[432]. Therefore, they submitted that the dismissal of the application could not justify any apportionment of costs in favour of the Applicants.

23    Contrary to the submissions of Lendlease, the application for summary judgment was not dismissed solely on case management grounds: see J[429].

24    I see no reason to depart from the usual costs order to follow the event where there has been an unsuccessful separate interlocutory application, as is the case here. The taxing master will deal with an assessment of the costs when the other costs are evaluated.

Applicants’ proposed declaration in relation to surplus proceeds of bank guarantees

25    In their minute of proposed orders, the Applicants sought the following declaration:

Each Hastie Entity has a right to return of such amounts drawn by a respondent on or after 28 May 2012 [the Appointment Date] on a bank guarantee purchased and provided to the respondent by that Hastie Entity, being funds drawn on that bank guarantee which are not required to meet that respondent’s claims against the said Hastie Entity.

26    The proposed declaration was sought on the basis of the Court’s conclusion at J[386], which was relevantly as follows:

[U]pon the Respondent’s demand on the bank guarantee and reception of the proceeds, the Respondent has an obligation to account to the Hastie Entity in respect of any surplus proceeds, that is, an obligation to return funds not required to meet its claims against the Hastie Entity: see, eg, Clough at [52]; Mainline at 353-354 and Cargill at 465 (per Potter LJ) and 471 (per Staughton LJ). Accordingly, the Hastie Entity has a corresponding right to return of such amounts…

27    It is first important to recall that declarations are a discretionary remedy. As Gibbs J (as he then was) said in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (‘Forster’) at 437:

It is neither possible nor desirable to fetter the broad discretion … by laying down rules as to the manner of its exercise.

28    However, in reviewing the decided cases, factors can be identified which influence courts in exercising that discretion.

29    In Ainsworth v Criminal justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ, the High Court identified the major discretionary considerations in granting declaratory relief, which are all inter-related:

[D]eclaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.

[citations omitted]

30    In Forster at 437, quoting Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 at 448, Gibbs J stated that the question must be “real and not a theoretical question”. This general refusal by the court to determine hypothetical questions encompasses a number of overlapping issues. Most fundamentally, there must be a dispute in existence. For example, in Re Clay; Clay v Booth (1919) l Ch 66 (‘Re Clay’), the English Court of Appeal refused to make a declaration that the petitioners were not liable to the defendant under a deed of indemnity. Swinfen Eady MR (with whom Duke LJ and Eve J agreed) held that the case was not a proper one for the making of a declaration because the defendant had made no claim under the deed against the petitioners. Re Clay has been approved by the High Court in Hume v Munro (No 2) (1943) 67 CLR 461 at 478 per Starke J and Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 at 572 per Latham CJ.

31    The obligation to account referred to in J[386] has not been in dispute between the parties, and has been expressly accepted by the Respondents. The Applicants seek to argue that the obligation to account is still a live issue for determination and is encompassed (and pleaded) within their claims in their Bank Guarantee Case for the amounts drawn down by the Respondents or the return of the relevant contractual instruments. Hence, the Applicants also contend that I should not dismiss the claims raised in the Bank Guarantee Case, as they have not been finally determined in light of any pending obligation to account.

32    I do not accept these contentions. Whilst J[386] recognises the Hastie Entities’ legal rights in relation to the surplus proceeds of the bank guarantees in question in the main proceeding, it is not appropriate that the Court make a declaration as to that matter. This paragraph, J[386], was part of a course of reasoning directed to the conclusion that any claim for any debt due on such an accounting was personal, not proprietary. The issue of the entitlement to surplus proceeds of the bank guarantees has not only not been in dispute between the parties, but was also not pleaded by the Applicants.

33    Prior to the minute of proposed orders filed on 18 November 2022 following the delivery of the Liability Reasons, the Applicants did not ever seek a declaration in the form now proposed, or an account relating to the surplus funds to be returned out of the guarantee proceeds. However, I note that at an early stage of the trial in their proposed orders dated 24 March 2022 contained within a document titled “The Liquidators’ Suggested Answers to the Issues Raised in the Amended Points Of Claim and Amended Points Of Defence – First And Second Respondents Multiplex (“R1” and “R2”) (Liability Trial)”, the Applicants did seek, as an alternative to the full repayment of the entire proceeds of the bank guarantees, an order to account for the “balance of the amount drawn as determined by the Liquidators in accordance with the Court’s answer to issues 14 and 15”. The Applicants’ suggested answer to issues 14 and 15 was as follows:

The bank guarantee proceeds continue to be held by R1 and R2 on the basis that there be an accounting for their use and to the extent that the Liquidators are not provided with contemporaneous, bona fide evidence in support of the fact that the use of the drawn funds, have not been utilised to make payment for claims made by R1 and R2 in accordance with the Liquidators’ admissions in respect of issue 4, those funds must be repaid to the Liquidator.

However, this form of suggested answer and proposed order was not a pleaded claim.

34    The absence of any remaining or surplus proceeds to the bank guarantees is referred to in certain of the Respondents’ defences. However, the defences of the Respondents have not elevated the question of the surplus proceeds to an issue in the main proceeding, and the fact remains that the Applicants do not seek relief in relation to the surplus proceeds of the bank guarantees in their pleaded claims.

35    The only pleaded basis of the guarantee proceeds claims, in the various points of claim or concise statements against each Respondent, was for the immediate (or “forthwith”) payment to the Applicants of the whole of the proceeds of the guarantees drawn down or the return of the guarantees. It was in substance an “all or nothing” claim. That is, the pleaded claim impugned the Respondents’ right to draw down on the bank guarantees at all. There was no alternative claim for relief sought as to the obligation of the Respondents to return surplus funds after any accounting of the value of their claims against the Hastie Entities. Simply put, any claim to the surplus proceeds or the Respondents’ obligation to account for such was not pleaded. Presumably this was because the law on this aspect was clear and no Respondent disputed this obligation to return funds not required to meet its claims against the Hastie Entity.

36    While submissions during the liability trial canvassed the Hastie Entities’ asserted rights in relation to the surplus proceeds of the bank guarantees, these submissions were in the context of the Applicants’ pleaded Bank Guarantee Case as described above (and in particular in the context of the Applicants’ submissions as to its proprietary interests in relation to the bank guarantees). The Hastie Entities’ rights in relation to surplus proceeds was never in dispute, and so the issue is not now a controversy in dispute between the parties requiring a declaration, having regard to the principles discussed earlier.

37    The only “accounting” which bears on the pleaded case is in relation to a different exercise, being the set-off defence raised by the Respondents against the receivables amount claimed to be owed to the Applicants as part of its Receivables Case. Whilst at J[181]-[182] I noted the relationship between the Receivables Case and the Bank Guarantee Case, the accounting exercise as to set-off and the accounting exercise as to the surplus proceeds of the bank guarantees are completely different. The set-off accounting involves the deduction of the Respondent’s claims against the relevant Hastie Entities from the Hastie Entities’ receivables claims against the Respondent. Conversely, the bank guarantee surplus accounting involves the deduction of the Respondent’s claims against the relevant Hastie Entities from the amount drawn down by the Respondent from the bank on the bank guarantees.

38    While the deduction of the Respondent’s claims against the relevant Hastie Entities is a common aspect of each accounting exercise, the amount of those claims that the Respondent may seek to prove may not necessarily be the same in the set-off accounting (which is referred to in the pleaded claims) as in the bank guarantee surplus accounting (which is not referred to in the pleaded claims). In the Receivables Case, where the Respondent’s set-off defence, if proved, will reduce or extinguish the amount able to be recovered by the Applicants, the Respondent only need prove an amount of their claims against the Hastie Entities equal to the debt claimed against that Respondent in order to reduce the amount able to be recovered by the Applicants to nil. In that regard, no counterclaim is made by the Respondents in the main proceeding for damages – that is, the Respondents are content to set-off the Hastie Entities’ claims to nil and no further, and do not seek the amount of any debt that may be owed to them by the Hastie Entities after the application of set-off.

39    Conversely, in the bank guarantee surplus accounting, the Respondents would need to prove that the amount of their claims against the Hastie Entities is equal to the amount drawn down under the bank guarantee. It may be the case that the Respondent would seek to prove the same amount in respect of both accounting exercises, or it may not be the case. On the basis of the pleaded claims, all the Respondents need to prove in the set-off accounting exercise in order to successfully defend the Applicants’ receivables claims by way of set-off is that the amount of their loss and damage claims against the Hastie Entities are equal to the Hastie Entities’ receivables claims against them, and nothing more. On the basis of the pleaded claims, the Respondents do not need (nor are they expected) to lead evidence to demonstrate that the amount drawn down on the bank guarantees was wholly expended on their loss and damage claims against the Hastie Entities under the relevant subcontracts. Proving this may be a greater burden than proving what is required in the set-off accounting exercise if the amount drawn down under the bank guarantees by a particular Respondent is greater than the Applicants’ receivables claims against that Respondent.

40    This explanation distinguishing between the set-off accounting exercise and the bank guarantee surplus accounting exercise goes to show that the pleaded claims involving the set-off accounting exercise in the Receivables Case are separate to the bank guarantee surplus accounting exercise. The bank guarantee surplus accounting exercise is not necessarily a practical corollary to the set-off accounting that can be determined on the basis of the evidence that will be relied upon by the Respondents for the purposes of the set-off accounting. It would be unfair to the Respondents to permit the bank guarantee surplus accounting exercise to be introduced at this stage of the proceeding.

41    Therefore, on this basis, it would not be appropriate for the Applicants to seek relief against any respondent in the main proceeding as to their fulfilment of the obligation to pay any surplus proceeds of the bank guarantees to the Applicants. I therefore decline to make the declaration proposed by the Applicants.

42    My conclusions in this section are also relevant to my reasons for the dismissal of particular claims against the Respondents in the next section. In essence, any claims relating to the Bank Guarantee Case should be dismissed in their entirety based upon the Liability Reasons and recognising that the issue as to surplus proceeds of the bank guarantees is outside the Applicants’ pleaded case.

Dismissal of particular claims against the Respondents

43    Each of the Respondents seek an order dismissing particular claims in the main proceeding that were finally determined in the Liability Reasons. These claims were identified by paragraphs of the various points of claim and concise statements against the Respondents that were contained in appendices to the Respondents’ consolidated proposed orders provided to my Chambers.

44    Such claims identified by the Respondents that are able to be finally determined now or as a consequence of the Liability Reasons, and which are referred to in Appendices 1 to 4 respectively of my orders in the main proceeding, are in relation to:

(a)    claims to payment of receivables not made within six years before 14 November 2017 (that is, the statute-barred receivables claims);

(b)    claims no longer pressed by the Applicants;

(c)    claims to payment of amounts drawn down under the bank guarantees by the Respondents; and

(d)    claims to the return of the bank guarantees as physical instruments to the Applicants.

45    First, it is necessary for me to briefly discuss certain of the claims sought to be dismissed referred to in Appendix 1 to the Respondents’ initial proposed orders, which were addressed during the case management hearing on 23 November 2022. Those claims that I have decided to dismiss are now referred to in Appendix 1 of the orders made in the main proceeding.

46    Multiplex seeks to dismiss [364] and [368]-[370] of the Further Amended Points of Claim against it. Paragraph 364 states: “The amount of $103,400 was due and payable no later than 1 October 2011 (the Sydney Water Receivable).” The pleaded due date of the receivable – a and therefore the accrual of the cause of action of the relevant Hastie Entity’s debt claim – is 1 October 2011. Therefore, when that debt claim was pleaded for the first time in the Applicant’s Concise Statement dated 14 November 2017, it was out of time. Although no evidence was accepted by this Court as to the due date of any particular invoices or amounts, on its own pleaded case the Applicants’ claims at these paragraphs are out of time and therefore ought to be dismissed.

47    On the same basis, I am of the same view in respect of the claims sought to be dismissed by Lendlease as referred to in Appendix 1 to my orders.

48    Laing O’Rourke sought to dismiss the Applicants’ claims in relation to two invoices that were part of a total amount claimed as a receivable by the Applicants. The relevant paragraphs sought to be dismissed were as follows:

[16]    Between in or about September 2011 and April 2012, Hastie Australia submitted payment claims and issued invoices for work completed pursuant to the Penrith Health Campus Agreement, as set out below:

(a)    Payment claim 10 dated on or about 20 September 2011, invoice 1161335, in the amount of $417,094;

(b)    Payment claim 11 dated on or about 20 October 2011, invoice 1193677, in the amount of $83,578;

…

[17]    The outstanding amount of the payment claims and invoices referred to in paragraph 16 above is $606,887.70, which was due and payable to Hastie Australia by no later than 1 June 2012 (the Penrith Health Campus Receivable).

…

[33]    Hastie Australia is owed by Laing O’Rourke $606,887.70 (plus interest) for work under the Penrith Health Campus Agreement (being the Penrith Health Campus Receivable).

49    I have dismissed [16(a)], because the 20 September 2011 invoice referred to is in evidence before the Court and states that “payment terms are 30 days from the date of this invoice”. Accordingly, the due date for the amounts in the invoice is prior to 14 November 2011, so that the Applicants’ claim for a debt in respect of those amounts was out of time as at the filing of the Applicants’ Concise Statement on 14 November 2017. However, the amounts claimed in the 20 October 2011 invoice are not out of time, as those amounts were also stated to be on payment terms 30 days from the date of the invoice, which means that the relevant debt claim accrued as a cause of action after 14 November 2011 and so was pleaded within time in the Applicants’ Concise Statement on 14 November 2017.

50    In light of the reduced amount of the Penrith Health Campus Receivable referred to at [17] and [33] of the Amended Points of Claim that was claimed within time, the Applicants should amend those paragraphs accordingly. It is not appropriate, as Laing O’Rourke seeks, to dismiss those paragraphs entirely.

51    Finally, Scentre also initially sought to dismiss certain paragraphs in the Amended Points of Claim against it, in particular [16(b)](i)], which referred to the following payment claim of the relevant Hastie Entity:

Payment Claim No. 1 dated 28 September 2011 in the sum of $6,924.00 Hastie Air Conditioning subsequently issued Invoice No. 1187241 dated 18 October 2011 in the sum of $346.25 in respect of retention monies withheld from this payment claim.

52    On the basis of a number of payment claims including the above, [17] states:

The total sum of the payment claims and/or outstanding invoices referred to in paragraph 16 above, $472,022.40 was payable to Hastie Air Conditioning by no later than 4 July 2012 (the Westfield Carindale Receivable).

53    Neither the 28 September 2011 payment claim nor the 18 October 2011 invoice is in evidence before the Court. Accordingly, Scentre has not discharged its burden of proving that the relevant Hastie Entity’s cause of action for its debt claim as to that amount accrued prior to 14 November 2011 so that the claim for that amount was made out of time in the Concise Statement filed on 14 November 2017. I am therefore not able to dismiss the Applicants’ claim as to the amount referred to at [16(b)(i)] nor the other related paragraphs sought to be dismissed by Scentre.

54    Now, the claims referred to in Appendix 2 are claims no longer pressed by the Applicants. To the extent such claims are part of the Bank Guarantee Case, the relevant paragraphs are also referred to in Appendices 3 or 4. This is significant because, for reasons that will become clear in the next section, I only order costs taxable forthwith for the claims referred to in Appendices 3 and 4.

55    The claims referred to in Appendices 3 and 4 comprised the Applicants’ entire Bank Guarantee Case (which I have already discussed in the previous section of these reasons).

56    The applications against Grocon consisted only of such claims (that is, there was only a Bank Guarantee Case against them and no Receivables Case). Accordingly, rather than dismissing certain paragraphs of the Applicants’ pleadings as against Grocon, it is appropriate that I wholly dismiss the proceeding against Grocon. The applications against Grocon are therefore not referred to in paragraph 6 of the orders made in the main proceeding or the Appendices to those orders.

57    The claims as against Badge WA are contained at [1]-[30] of the Amended Points of Claim against Badge (the Seventh and Eighth Respondents together). Accordingly, all the claims as against Badge WA are dismissed by the dismissal of those paragraphs. Nevertheless, after discussion between Counsel for Badge WA and the Applicants at the case management hearing on 23 November 2022, it was accepted that Badge WA would remain a party, at least at this stage. Therefore, the Amended Points of Claim against Badge is referred to in paragraph 6 of the orders made in the main proceeding and the relevant paragraphs referring to claims as against Badge WA are referred to in the Appendices to those orders.

58    Turning to the remainder of the claims referred to in Appendices 3 and 4, the Applicants submit that the proposed orders sought by the Respondents in this regard extend well beyond the Bank Guarantee Case and ignore the Respondent’s obligation to account to the Hastie Entities for any surplus proceeds of the bank guarantees. After the case management hearing of 23 November 2022, I asked the Applicants to consider the appropriateness of the particular paragraphs of the pleadings sought to be dismissed by the Respondents if such orders were made. After the Applicants provided a corresponding set of appendices of the parts of their claims that ought to be dismissed, the parties identified the differences between the Applicants and Respondents, and indeed, the major difference between the Applicants and each of the Respondents were paragraphs that were incidental to the Bank Guarantee Case which the Applicants sought to maintain in order to preserve their ability to pursue issues that may relate to the Respondents’ aforementioned obligation to account for surplus proceeds. As I have explained previously in these reasons, it is not appropriate to preserve any such paragraphs and to the greatest extent possible, I have dismissed the Applicants’ claims in respect of its Bank Guarantee Case in its entirety.

59    I will make orders dismissing the claims in the various categories (a)-(d) referred to earlier in this section as against the relevant Respondent, by reference to the appendices to the orders.

Costs

60    Each of the Respondents seek an order as to their costs in the main proceeding. Each of the Respondents to some extent seek costs on an indemnity (or “solicitor-client”) basis. Further, save for Grocon and Scentre, each of the Respondents sought that their costs of and incidental to the liability trial be taxed immediately or forthwith (which would include the costs order previously made by order 11 of the Court’s orders made on 29 January 2021 in the main proceeding).

61    It is convenient to summarise the positions taken by the Respondents as to indemnity costs by way of the following alternative proposed orders:

(a)    that the costs of the liability trial as to the receivables claims be payable on the ordinary basis and the costs as to the guarantee claims be payable on an indemnity basis – this was the position adopted by Lendlease, CPB, Thiess and Watpac (and by Scentre, in the alternative to its primary position referred to below);

(b)    that costs of the liability trial as a whole be payable on an indemnity basis – this was the primary position adopted by Hansen Yuncken, Badge, Grocon and John Holland, and submissions to this effect were also made by Multiplex and Laing O’Rourke;

(c)    that the costs of the liability trial prior to a certain date on which an offer of settlement or Calderbank offer was made be paid on an ordinary basis, and thereafter on an indemnity basis – this was the position adopted by Multiplex, Laing O’Rourke and Scentre; and

(d)    in the case of Grocon, as an alternative position, that costs up to 31 December 2020 (the date of the Thirteenth Respondent’s voluntary administration) or 1 April 2021 (the date on which Grocon submit that the Applicants’ claims were clearly contrary to known facts) be payable on an ordinary basis, and thereafter on an indemnity basis.

62    I will refer to the relevant principles before addressing each of the above positions.

Relevant principles

63    The Full Court of this Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 at [3]-[5] per Jagot, Yates and Murphy JJ usefully set out some of the relevant principles as to the ordering of costs on an indemnity basis:

[3]    The Court has a broad power to award costs in proceedings, including indemnity costs, under s 43 of the Federal Court of Australia Act 1976 (Cth) (the Act). In exercising the discretion to award costs, s 37N(4) of the Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1).

[4]    Usually the Court will award costs to the successful party on a party/party basis, but where the circumstances of the case warrant a departure from the usual course the Court may order indemnity costs. The principles relevant to an award of indemnity costs are well-established. There can be no exhaustive list of the circumstances that may warrant the exercise of the discretion.

[5]    In broad terms an order for indemnity costs requires that some special or unusual feature arises: Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3] (Finn J). Indemnity costs are not punitive but are designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). Such circumstances may include where allegations are made “which ought never to have been made”, where the case is “unduly prolonged by groundless contentions” (Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115 at [15], [17] (Davies J)), and where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 at 401 (Woodward J)) or “persists in what should on proper consideration be seen to be a hopeless case” (J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 at 303 (French J)).

64    In addition to the principles above, I refer to the additional circumstances of where “proceedings were commenced or continued for some ulterior motive”, where claims were advanced “in wilful disregard of known facts or clearly established law” or where there was an “imprudent refusal of an offer of compromise”: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (‘Colgate-Palmolive’) at 233-234 per Sheppard J. Most of the Respondents’ submissions emphasised the latter two principles in particular.

65    It is useful also to recall the further reminder of his Honour in Colgate-Palmolive at 234:

It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

66    In relation to offers of compromise, Laing O’Rourke and Scentre also relied on the principles of Calderbank v Calderbank [1975] 3 All ER 333 (‘Calderbank’). The relevant legal principles concerning a Calderbank offer are also well established. In order for a Calderbank offer to operate upon the Court’s discretion to make an indemnity costs order, two elements must be satisfied: first, it must be a genuine offer of compromise; and second, it must have been unreasonable for the offeree not to accept it when viewed in light of the circumstances existing at the time the offer was rejected.

67    In such circumstances, while it is a necessary precondition to an order for indemnity costs that the party to whom the offer was made has not achieved a better result than that provided for in the offer, there is no presumptive entitlement to indemnity costs if that is established: Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394 at [52] (Halley J).

68    As the Full Court of this Court in Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 at [7] per Nicholas, Yates and Beach JJ said, the circumstances to be taken into account in determining whether rejection of an offer was “unreasonable” cannot be stated exhaustively but may include, for example:

(a)    the stage of the proceeding at which the offer was received;

(b)    the time allowed to the offeree to consider the offer;

(c)    he extent of the compromise offered;

(d)    the offeree’s prospects of success, assessed as at the date of the offer;

(e)    the clarity with which the terms of the offer were expressed; and

(f)    whether the offer foreshadowed an application for an indemnity costs order in the event of the offeree rejecting it.

Applications for indemnity costs in respect of the Bank Guarantee Case

69    Each of the Respondents sought costs in respect of the Applicants’ Bank Guarantee Case on an indemnity basis. Each of the Respondents also sought costs in respect of the liability trial as a whole (the remainder of the Applicants’ claims being the Receivables Case), with some Respondents seeking those costs on an indemnity basis also (which I will address in the next sections), and others seeking such costs only on the ordinary basis.

70    It is convenient to set out Lendlease’s submissions in support of this position (that is, indemnity costs for the Bank Guarantee Case claims, and ordinary costs for the Receivables Case claims):

(a)    In relation to the liability trial generally, costs should follow the event; there are no “good and exceptional reasons in the particular case” to embark on any nice apportionment to issues, which were interrelated by reason of the Applicants’ overarching reliance on Ch 5 of the Corporations Act.

(b)    In relation to the bank guarantee claims specifically, indemnity costs should be awarded. In the often-cited words of Sheppard J in Colgate-Palmolive at 233-234, those claims were advanced “in wilful disregard of … clearly established law”, including that the payee of funds has property in the funds subject to any disposition (J[374]) and that a general rule requiring equal treatment of creditors finds no footing in the insolvency legislation (J[290]).

(c)    The Applicants persisted with their Bank Guarantee Case, without reference to principle or authority apart from a “misplaced” reliance on a description of netting and a “completely misguided” reference to a decision on tracing: J [400], [406], [440]. The Court has rejected every premise of the Bank Guarantee Case, based on a “regular application of the doctrine of privity” and settled learning on property in money since the time of Lord Mansfield and Lord Cottenham LC: see J [374], [385], now being elementary law: see, eg, Carter, Contract Law in Australia, 6th ed (2013), ch 16; Bridge et al, The Law of Personal Property, 3rd ed (2021), ch 7. Nothing in Ch 5 of the Corporations Act made the Applicants’ position tenable.

(d)    Properly advised, the Applicants should have known that they had no chance of success on these claims: see Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397 at 401 per Woodward J.

71    The Applicants did not make submissions specifically in response to the factors raised by the Respondents above, but they sought an order that costs in the main proceeding be reserved. The Applicants submitted that the Bank Guarantee Case was not a discrete issue suitable for a separate costs order because first, it was related to the Respondents’ remaining obligation to account for the surplus proceeds of the bank guarantees, and second, it was related to the Receivables Case, both of which were issues contemplated for referral to a referee and which might ultimately be determined in favour of the Applicants.

72    I agree with the Respondents that it is appropriate at this point to make costs orders in relation to the Bank Guarantee Case. As I explained previously in these reasons, the set-off accounting exercise in the Receivables Case and the bank guarantees surplus proceedings accounting are separate exercises. The Applicants’ submission that the exercises are related and must be dealt with together by the Court in determining an appropriate costs order cannot be accepted. However, contrary to the Respondents’ submissions, I decline to make any order as to costs on an indemnity basis and only make costs orders on an ordinary basis in respect of the Bank Guarantee Case.

73    As to the appropriateness of ordering costs on an indemnity basis, I reject Lendlease’s submission that the Applicants’ claims in its Bank Guarantee Case were advanced in wilful disregard of clearly established law. While the Applicants’ claims were novel and were contrary to the usual operation and interpretation of bank guarantees and contrary to the prevailing authorities in insolvency law generally as to bank guarantee claims, they were not in disregard of clearly established law. The Respondents were not able to rely on any particular binding authority as to the proper application of ss 437D or 468 specifically, or Chapter 5 of the Corporations Act generally, in relation to bank guarantee claims made after the appointment of voluntary administrations to a company. For example, although Grocon refers to the binding High Court authority of Australasian Conference Assoc Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335 referred to in the Liability Reasons at J[273], the conclusion in Mainline was not made in the context of Chapter 5 of the Corporations Act. While its reasoning was ultimately followed, it could not be said to have been a mere matter of the application of binding authority to the Applicants’ contentions.

74    The Respondents submitted the converse in their substantive submissions in the main proceeding: that the Applicants were not able to identify any decision holding that a trust over the proceeds of a call is to be inferred from the nature of an agreement providing for the issue of bank guarantees (such as a building contract), even though such instruments have been in use for the better part of a century, and that such a “dearth of direct authority” would itself tend to indicate “a general consensus of opinion that the point is not tenable”: Re KL Tractors Ltd (1961) 106 CLR 318 at 338 per Fullagar J. Echoing that substantive submission in the main proceeding, certain of the Respondents submitted that while the Applicants may argue that they were entitled to challenge the well-settled law in relation to bank guarantees, the risk and consequence of consciously choosing to do so is that where the well-settled law is confirmed by the Court, the respondents to that challenge are entitled, pursuant to the principles cited earlier, to be awarded indemnity costs.

75    Admittedly, and as I found in the Liability Reasons, the Applicants were wholly unsuccessful and in parts misguided in relation to various issues, such as:

(a)    fundamental established authority regarding property in money received,

(b)    the relevance of any “causal or transactional link”;

(c)    the proper characterisation of the relevant standard-form contractual materials leading to the conclusion that the banks ultimately paying the Respondents under the bank guarantees did so in their right and not on behalf of the Hastie Entities (as is usually intended by the entering into of bank guarantee arrangements); and

(d)    the effect of various provisions within Chapter 5 of the Corporations Act.

76    The latter two issues in particular are to be regarded as more complex, requiring a detailed examination of a number of contractual documents and the characterisation and interpretation of various provisions of the Act together in application to the entire factual circumstances of the drawing down of bank guarantees by the Respondents after the Hastie Entities’ voluntary administration. The Applicants’ Bank Guarantee Case, while relying on an overarching interpretation of Chapter 5 of the Corporations Act that was somewhat novel and lacking direct support in the authorities, and while ultimately wholly unsuccessful, was not completely groundless, or a hopeless case, or in wilful disregard of known facts or established law (within the meaning of the relevant authorities as to indemnity costs). While I wholly dismissed the Applicants’ claims and found against them on each of the Common Issues which were a part of the Bank Guarantee Case, my final conclusions as to those issues were ultimately a function of legal reasoning beyond the mere application of clearly established law to undisputed facts.

77    Certain Respondents further referred to the actions of the Applicants during the case management of the proceeding. These matters are of relevance to the submission made by some Respondents that the Applicants’ conduct was contrary to the overarching purpose mandated by s 37M of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), referred to earlier in these reasons.

78    For example, the evidence filed by Hansen Yuncken and Badge was that no response was ever received from the Applicants to a letter dated 20 May 2019 asserting that the Applicants’ contentions were contrary to well-established law and seeking further explanation. Further, Hansen Yuncken and Badge submitted that the conduct of the liability trial by the Applicants led to the unnecessary prolongation of the hearing and caused the Respondents to incur unnecessary and additional cost, referring in particular to the Applicants’ recasting of issues across the length of the proceeding and the “ever-shifting landscape of the Applicants’ case” that required additional expense on the part of the Respondents. For example, it was submitted that the Respondents were required to monitor the liability trial as against each Respondent because the Applicants prosecuted different submissions as the trial progressed not prosecuted before the earlier Respondents heard at trial, such as the Applicants’ submissions as to the application of s 468 of the Act. This also necessitated that some of the Respondents file further closing submissions after the hearing of the liability trial.

79    Finally, Hansen Yuncken and Badge submitted that the Applicants’ Proposed Orders and Directions dated 10 May 2022, which was only sought toward the end of the liability trial, represented a “wholesale re-imagining of the Applicants’ case that can only be described as a last-minute attempt to salvage some success out of a hopeless case as defeat began to loom large on the horizon”.

80    I do not accept this final submission in its entirety. As explained earlier in these reasons, the Liquidator’s Proposed Orders and Directions dated 10 May 2022 differed from the relief sought in the Applicants’ Second Further Amended Originating Process and individual points of claim and concise statements, but to some extent this can be explained by the fact that the Liquidator’s Proposed Orders and Directions of 10 May 2022 sought relief specifically in relation to the liability trial only, and not final orders in relation to the main proceeding as a whole. It is true that the Applicants “recast” their case in some respect as the trial progressed, and that the proposed orders sought by the Applicants on 23 March 2022 in the early stages of the liability trial differed significantly from the final Proposed Orders and Directions dated 10 May 2022. I have taken these matters into account, and their impact on each of the Respondents, having particular regard to s 37M of the FCA Act and the extent of any prolongation of the liability trial caused thereby. However, as I have said before, this is a proceeding which can be properly characterised as large scale litigation and necessarily involves reconsideration of approach as the litigation progresses, sometimes during the trial itself: Hastie Interlocutory Decision at [276]. As a whole, I do not regard the Applicants’ conduct in this regard as inappropriate or a breach of the overarching purpose mandated by s 37M of the FCA Act so as to warrant imposing an indemnity costs order.

81    After considering together all of the submissions and circumstances raised by each Respondent for the purposes of each of their individual applications for indemnity costs, which are to be determined separately, I consider the ultimate conclusion as to whether to order indemnity costs in respect of the Bank Guarantee Case a borderline one. However, on balance, I would not exercise the Court’s discretion to order costs on an indemnity basis against the Applicants in relation to the dismissal of the Bank Guarantee Case.

82    I now turn to the appropriateness of ordering costs on an ordinary basis now in respect of the Bank Guarantee Case irrespective of the final outcome of the Receivables Case. While the Bank Guarantee Case is related to the Receivables Case and both are ultimately seeking amounts said to be owed by the Respondents to the Applicants, the Bank Guarantee Case was a discrete basis for the Applicants’ seeking those amounts. The Applicants’ Bank Guarantee Case was wholly unsuccessful and it is appropriate that the Applicants pay the Respondents’ costs in relation to those claims. Further, any “obligation to account” of the Respondents that may ultimately be required to be enforced, as discussed earlier in these reasons, was not a part of the Applicants’ claims in this proceeding. Therefore, it does not bear on the issue of costs now that the Applicants’ Bank Guarantee Case as against each of the Respondents has been finally determined and dismissed by these orders.

83    I would therefore order that the Respondents receive a costs order on the ordinary basis in relation to the claims dismissed as part of the Bank Guarantee Case, as contained in appendices 3 and 4 to my final orders. For those Respondents relying on Calderbank offers or offers of settlement, I would allow them the option to elect either to enforce such a costs order on the ordinary basis as to the Bank Guarantee Case, or to have costs reserved so as to also reserve their rights to continue to pursue an indemnity costs order on the basis of their Calderbank offers or offers of settlement once the main proceeding is finally determined.

Applications for indemnity costs in respect of the Receivables Case

84    In addition to indemnity costs in respect of the Bank Guarantee Case, certain Respondents also seek indemnity costs in respect of the Receivables Case, and so they seek indemnity costs in respect of the liability trial as a whole. Those Respondents generally sought indemnity costs in this regard on a similar basis to that which was relied upon in respect of the Bank Guarantee Case – for example, that the Applicants pursued the proceeding in wilful disregard of clearly established law and unduly prolonged the proceeding by maintaining groundless contentions. In addition to the matters raised in respect of costs of the Bank Guarantee Case, those Respondents also refer to the following matters in respect of the Receivables Case:

(a)    The Applicants started this proceeding in November 2017 claiming orders to the effect that a charge over progress payment claims and invoices of two Hastie Entities against Multiplex denied mutuality for set-off in insolvency. The case proceeded as a “test case” about this “no mutuality proposition” even after the Court of Appeal of Western Australia had firmly rejected the proposition. Multiplex submitted that, following the Forge appeal judgment (Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (Receivers and Managers appointed) [2018] WASCA 163; (2018) 53 WAR 325), there was no good basis for the Applicants’ claims, which were thereafter premised upon a strained reading of s 553C and the Forge First Instance decision (Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] WASC 152; (2017) 52 WAR 90) as regards the Receivables Claims (which issue was ultimately conceded at the conclusion of the Liability Trial by the Applicants).

(b)    Despite abandoning the “no mutuality proposition”, the Applicants continued to dispute mutuality until during the trial (and even thereafter in relation to the Deed of Cross-Guarantee) and continued to make various submissions unsupported by authority as to the effect of Ch 5 of the Corporations Act on their Receivables Case: see, eg, J[95], [158], [210], [243].

(c)    In relation to the Receivables Case, the only issues remaining in dispute at the beginning of the trial ultimately boiled down to the question of whether each Respondent was autonomously entitled to set-off its contractual claims for loss and damage against the monies it owed to the Hastie Entities, or whether the Respondents ought to have allowed the Liquidator to determine the application of a s 553C set-off: J[247].

(d)    That question was decided by application of the well-known and long-standing High Court authority of Gye v McIntyre (1991) 171 CLR 609 at 622, which the Court in the present case held “settles the issue in favour of the Respondents”: J[249]. Not only did the Applicants seek to run an argument contrary to well-known and binding authority, the Court also held that the Applicants’ argument to the contrary could not be reconciled with the concession made by the Applicants that the Respondents were not required to lodge a proof of debt, such that the argument lacks even internal coherence.

(e)    As a sub-issue, the Court was asked to consider the application of the mutuality principle in the context of the Deed of Cross Guarantee. Again, the Applicants’ contentions were rejected by application of well-known and incontrovertible legal principles as summarised by the Court of Appeal of Western Australia in Forge: J[258]-[261].

(f)    All liability issues have now been decided in favour of the Respondents apart from a limitations issue which was precipitated by the “recasting” of the Applicants’ case: J[31]. The Court has noted that, subject to further relevant evidence, “it is difficult to conclude that the Liquidator would be justified and acting reasonably to continue to pursue the receivables claims”: J[456].

85    The Applicants deny that the liability questions in the Receivables Case has been finally determined in favour of the Respondents. The Applicants in the main proceeding are seeking orders for payment by the Respondents of a debt, which is denied by the Respondents partly on the basis of set-off. The Applicants say that the Respondents may well fail to establish on admissible evidence that their own contractual claims against the Hastie Entities, which when set-off against the Hastie Entities’ claims, result in a debt owed to each of the Respondents. The Applicants submit that the court should not make a costs order in relation to the Receivables Case when the Court cannot, on the evidence before it at this time, objectively dismiss the eventuality that, against some or all of the Respondents, the Applicants may well recover, if not the total amount sought, a very good portion of it.

86    I agree with the submissions of the Applicants. While I indicated in my Liability Reasons that “it is difficult to conclude that the Liquidator would be justified and acting reasonably to continue to pursue the receivables claims”, it is important to remember that the Court did not generally receive into evidence affidavits or documents concerning payment claims, payment schedules or payment invoices under the relevant subcontracts, relevant surrounding circumstances, or the Respondents’ loss or damage which they seek to set-off against the value of any receivables. In the Liability Reasons, I made certain general findings on the construction of the subcontracts as matters of principle which were in the Respondents’ favour, but I did not make any final determinations as to whether the Respondents were indebted to the relevant Hastie Entities in a certain amount: J[216]. Accordingly, the Receivables Case was not finally determined and it is inappropriate to make any costs order at this stage, including in relation to the parts of the Applicants’ Receivable Case which are to be dismissed on the basis that certain claims have been found to have been made out of time. Putting aside the separate Bank Guarantee Case, it would be inefficient and artificial to make costs orders now in respect of certain individual claims in the Receivables Case that have been dismissed while the remaining claims against the Respondents have not been finally determined.

87    It is therefore inappropriate at this stage of the proceeding to address the Respondents’ submissions as set out above in support of their applications for indemnity costs in respect of the Receivables Case.

88    In addition to the matters referred to above common to all of the Respondents who sought indemnity costs in respect of the liability trial as a whole, it is necessary to address the further submissions made by Laing O’Rourke and Multiplex specific to the applications for indemnity costs made by them.

89    Laing O’Rourke submits that, in addition to the Court’s determination in its favour in the Liability Reasons in respect of the Bank Guarantee Case, the following features of the Applicants’ Receivables Case against Laing O’Rourke are relevant:

(a)    the Applicants’ receivables claim for $606,888 at [17] of the Applicants’ Amended Points of Claim against Laing O’Rourke is not supportable by reference to the specific Payment Claims and invoices referred to in that pleading, each of which were tendered in the main proceeding by Laing O’Rourke – rather, having regard to Laing O’Rourke Amended Points of Defence and the Applicants’ Reply, the maximum amount that properly could be claimed is $124,287.24;

(b)    notwithstanding that, that receivables claim had to be dealt with in accordance with the payment mechanism provided under the relevant subcontract and to the extent that there was a “receivable” pursuant to the contractual payment mechanism, that claim was limited to Laing O’Rourke assessed amount in respect of Payment Claim 17 referred to in the aforementioned pleading, being $53,895.82 (against which Laing O’Rourke asserts set-off in any event) – in this regard, Laing O’Rourke relied on the Liability Reasons at J[202]-[208] and J[225]-[232]; and

(c)    in any event, of the $606,888 claimed in the aforementioned pleading, the vast bulk ($417,094.00) of the Applicants’ receivables claim against Laing O’Rourke is limitation barred (as per Appendix 1 to my orders in the main proceeding).

90    On the basis of the above matters, Laing O’Rourke submits that the Receivables Case advanced against it was hopeless and that Laing O’Rourke ought to be fully compensated on an indemnity basis for the costs incurred in defending such an unmeritorious claim.

91    I accept that, distinct from the other Respondents, the Receivables Case against Laing O’Rourke has now been substantially dismissed as a matter of quantum, as the Applicants’ payment claim for $417,094 has been dismissed on the basis that it was made out of time. As for the other matters raised, while those matters indicate that the final determination of the Receivables Case against Laing O’Rourke may ultimately fall in favour of Laing O’Rourke, until the Receivables Case is finally determined on the basis of the whole of the evidence, it is not appropriate to make any costs orders now in respect of the Receivables Case against Laing O’Rourke.

92    Multiplex’s application for indemnity costs in respect of the liability trial as a whole included submissions in relation to offers of settlement (to be addressed in the next section) and in relation to the Applicants’ approach to the case as a whole, which it is convenient to address here. At [13] of its submissions as to costs, Multiplex refers to various iterations of the Applicants’ pleadings against Multiplex over the course of the main proceeding. Multiplex then refers to the late concession of a “central proposition in dispute” in the main proceeding at the close of the liability trial. Multiplex refers to the “detailed information” evidencing Multiplex’s claims that the Liquidator had in its possession since 20 July 2015, in the face of which the Applicants pursued their claims. Then at [17] of its submissions as to costs, Multiplex referred to various letters sent by their solicitors over the course of 2019 and statements made by their Counsel during case management hearings over the course of 2019 that they submit indicate the hopelessness of the Applicants’ case which ought to have been recognised then, and the delays caused by the Applicants’ approach to the main proceeding.

93    Multiplex’s reliance on the above matters are in combination with their reliance on the offers of settlement made to the Applicants and so those matters are to be considered in conjunction for the purposes of considering my discretion to award indemnity costs. However, leaving aside their reliance on their offers to settle, in my view, the matters relied upon by Multiplex as detailed above do not sufficiently elevate their application for indemnity costs above those of the other Respondents as already addressed in this section, nor do those matters indicate that the Applicants have acted contrary to the overarching purpose mandated by s 37M of the FCA Act by their approach or conduct of the main proceeding as a whole, the liability trial as a whole or the Receivables Case in particular. I consider Multiplex’s submissions in relation to their offers of settlement made to the Applicants separately in the next section of these reasons.

94    Finally, there is an additional issue that is appropriately dealt with here – that is, whether the Court should order costs in respect of the liability trial irrespective of the outcome of the Receivables Case. CPB, Thiess and Grocon raise this question having regard to the fact that the final orders sought by the Applicants following the liability trial were directions sought by the Liquidator. They say that, because the main proceeding concerned directions sought by the Liquidator and the Respondents have been necessary contraveners in that process, the Respondents are entitled to their costs regardless of the ultimate outcome of the proceeding, pursuant to the principles in Farrow Finance Co Ltd (in liq) v ANZ Executors and Trustees Co Ltd (1997) 23 ACSR 521 (‘Farrow Finance’) per Hansen J and Gothard v Davey (No 2) (2011) 277 ALR 172 (‘Gothard’) at [21] to [23] per Edmonds J.

95    The Respondents summarise the Farrow Finance principle as follows: that where directions are sought by the liquidator and the issues are complex, the starting point is that the costs of the necessary parties are to be paid by the liquidator as costs in the liquidation.

96    In my view, the proceedings involving directions sought by external administrators in Farrow Finance and Gothard (and other similar cases such as in Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (1994) 49 FCR 334; [1994] FCA 1031) are to be distinguished from the main proceeding here. The Liquidator admittedly did seek directions in the main proceeding. However, the purpose of the proceeding is primarily an application involving a number of large debt claims brought on behalf of the Hastie Entities against the various Respondents. That is the relief sought in the Second Further Amended Originating Process. The principles that apply to directions applications involving necessary contraveners are not apt to apply to the main proceeding here, where in the course of the liability trial, the Respondents were not merely involved in a directions application as “necessary contraveners”, contradictors or representatives, but in fact acted in their own interests by forcefully defending the debt claims against them at the liability trial. That liability trial was conducted by reference to the Lists of Issues put forward by the parties and in relation to which the Liquidator sought orders and directions not as final relief, but as preliminary relief following the liability trial.

97    In any event, it would not be appropriate or practicable to order costs in relation to the Liquidator seeking advice and directions, separate from the substantive debt claims.

98    Overall, it is not appropriate to make costs orders now in respect of the Receivables Case, which claims have not yet been finally determined by the Court. Any such costs orders in respect of the Receivables Case are reserved.

Applications for indemnity costs on the basis of offers of settlement

99    Three of the Respondents – Multiplex, Laing O’Rourke and Scentre – refer to offers of settlement or Calderbank offers made to the Applicants during the main proceeding and rely on affidavits evidencing such offers, in support of their costs applications. Each of those Respondents seek ordinary costs up to the point of the offers, and indemnity costs thereafter.

100    I need only set out those Respondents’ submissions briefly in relation to this issue, because I have decided that it is not appropriate to assess the offers of settlement in question and the costs consequences that should follow prior to the final determination of all of the substantive issues in dispute between those parties. Each of those Respondents’ offers of settlement were in relation to the entire proceeding – that is, the Receivables Case and the Bank Guarantee Case – but only the Bank Guarantee Case has been finally determined, as previously explained in these reasons. As a consequence, until the Receivables Case in relation to each of those Respondents has been finally determined, it is not possible to make any final determination as to the genuineness of any of the offers of compromise or the reasonableness of the Applicants in rejecting those offers.

101    I turn first to the offers made by Multiplex. Multiplex in their submissions do not refer to the principles in Calderbank or characterise their offers as formal offers of settlement in accordance with Part 25 of the Federal Court Rules 2011 (Cth) (‘FCR’). Multiplex’s submissions as to their offers to settle are made in the context of the general principles as to indemnity costs set out earlier in these reasons, and in particular, “where the unsuccessful party imprudently refused an offer to compromise”, in combination with the other factors relied upon by Multiplex as part of their application for indemnity costs.

102    First, Multiplex has filed evidence that following a case management hearing in the main proceeding on 23 October 2018 during which the consequences of the Forge decision were discussed, Multiplex’s solicitors (on behalf of and jointly with a number of other Respondents) in a letter dated 23 November 2018 invited the Applicants to file a notice of discontinuance in the main proceeding on the basis that the Applicants’ pleading as to set-off had no basis. The Applicants did not take up Multiplex’s invitation in their response by letter dated 4 December 2018. Multiplex submits that, in the context of the matters raised in their submissions as to the hopelessness of the Applicants’ case, the 23 November 2018 “offer” was unreasonably refused by the Applicants.

103    Multiplex then refer to a further letter of offer sent on behalf of Multiplex on 4 March 2022, following the filing of Multiplex’s Points of Defence and lay evidence ahead of the liability trial. Multiplex’s offer to settle involved the following terms:

(a)    the Proceeding be dismissed against Multiplex with no order as to costs;

(b)    Multiplex would forego the existing costs orders in its favour made by this Court on 29 January 2021 (asserted by Multiplex to be $371,633.65, excluding GST) and any further costs claim or other claim under the relevant contracts; and

(c)    Multiplex would return certain bank guarantees and undertake not to call on other bank guarantees which had not yet been called upon, worth a total amount of $1,222,178.06.

104    Multiplex submits that, in the context of the hopelessness of the Applicants’ case and the further specific matters summarised above at [92] of these reasons, the 4 March 2022 offer was unreasonably refused by the Applicants.

105    On the basis of the above offers, Multiplex seeks indemnity costs after the 23 November 2018 offer, or in the alternative, after the 4 March 2022 offer. As I have said though, the Court is unable to determine Multiplex’s application for indemnity costs in this regard until both the Receivables Case and the Bank Guarantee Case are finally determined. Because of this, I do not make any findings as to the genuineness of Multiplex’s offers of settlement or the reasonableness of the Applicants in rejecting those offers. I therefore reserve the question of costs in this regard, but as I will explain at the end of this section, allow Multiplex the option to enforce the ordinary costs order in respect of the Bank Guarantee Case instead of pursuing its indemnity costs application on the basis of the offers of settlement.

106    I further note in relation to the alleged 23 November 2018 offer that, although the offer was made on behalf of Multiplex and various other Respondents, only Multiplex relies on the 23 November 2018 in their application for indemnity costs and only Multiplex seeks orders that provide for indemnity costs after 23 November 2018. On that basis, I do not allow any of the other Respondents the option to elect to rely on the 23 November 2018 offer instead of the costs order taxable forthwith in respect of the Bank Guarantee case.

107    Second, Laing O’Rourke relied on three separate offers of settlement made to the Applicants, being offers made on 19 December 2019, 21 February 2020 and 14 April 2022 respectively. Each offer was made pursuant to the principles in Calderbank. Each offer was an offer to settle the whole of the main proceeding as against Laing O’Rourke, that is, the Receivables Case and Bank Guarantee Case. Laing O’Rourke seeks orders that it receive costs on the ordinary basis up to the date of its offer (19 December 2019 in its primary submission, and the other offers in the alternative), and indemnity costs thereafter. As stated with respect to Multiplex, as the Receivables Case is yet to be finally determined, I do not make any findings as to the genuineness of Laing O’Rourke’s offers of settlement or the reasonableness of the Applicants in rejecting those offers. I therefore reserve the question of costs in this regard, but allow Laing O’Rourke the option to enforce the ordinary costs order in respect of the Bank Guarantee Case instead of pursuing its indemnity costs application on the basis of the offers of settlement.

108    Third, Scentre relied on two separate offers of settlement made to the Applicants, being offers made on 28 September 2021 and 26 April 2022. Again, each offer was made pursuant to the principles in Calderbank, and each offer was an offer to settle the whole of the main proceeding as against Scentre. Scentre seeks orders that it receive costs on the ordinary basis up to the date of its offer (28 Septemebr 2021 in its primary submission, and 26 April 2022 in the alternative), and indemnity costs thereafter. Again, I do not make any findings as to the genuineness of Scentre’s offers of settlement or the reasonableness of the Applicants in rejecting those offers. I therefore reserve the question of costs in this regard, but allow Scentre the option to enforce the ordinary costs order in respect of the Bank Guarantee Case instead of pursuing its indemnity costs application on the basis of the offers of settlement.

109    It may be that at a later stage of the proceedings once the Applicants’ Receivables Case is finally resolved, it is appropriate to order indemnity costs in respect of the applications against Multiplex, Laing O’Rourke or Scentre on the basis of the offers of settlement made by those Respondents. However, until the entire proceeding is finally determined, that order cannot be made.

110    Accordingly, I make an order that applies to Multiplex, Laing O’Rourke and Scentre which gives them the option either to enforce the ordinary costs order taxable forthwith with respect to the Bank Guarantee Case claims, or to elect not to enforce that costs order and instead to pursue their application for indemnity costs in respect of the liability trial as a whole having regard to the evidence of offers of settlement they have filed with the Court, which application can only be finally determined once the Receivables Case has been determined.

Grocon’s application for indemnity costs in the context of voluntary administration

111    It is to be recalled that the proceeding against Grocon (consisting of only the Applicants’ Bank Guarantee Case as against Grocon and no Receivables Case) is to be dismissed in its entirety.

112    As an alternative to their position seeking the costs of the proceeding on an indemnity basis, Grocon seeks its costs on a standard basis until 31 December 2020 (the date of the Thirteenth Respondent’s voluntary administration), and thereafter on an indemnity basis.

113    The basis for Grocon seeking indemnity costs after 31 December 2020 is explained at [22] of their submissions as to costs:

[I]n addition to being contrary to established law, from at least 1 April 2021, if not before on 31 December 2020, the main proceeding as against Grocon was contrary to known facts. By that time it should have been apparent to the Applicants that their prospects of establishing a proprietary tracing remedy against the proceeds drawn down from the bank guarantees was effectively zero given the administration. Further, Grocon provided the Applicants with the opportunity to investigate the prospect of recovery for itself, which it did not do.

114    The submission that the Applicants’ claims as against Grocon was contrary to known facts after 31 December 2020, by reason of one of the Grocon Respondents’ voluntary administration on that date, cannot be accepted. The fact of voluntary administration means that from that date, the Applicants would require leave of the Court in order to continue its proceeding against the Thirteenth Respondent, and further, that the Applicants may have had grounds to suspect that the Grocon Respondents were insolvent such that their claims against Grocon may not be able to be wholly satisfied out of Grocon’s assets in an external administration. However, that does not lead to the conclusion that as at that date, the Applicants’ claims were contrary to established law or contrary to known facts. Rather, if the Applicants had been successful in their bank guarantee claims such that the relevant Hastie Entity held proprietary rights in the amounts drawn down by Grocon under the bank guarantee, then it may have been able to recover the amounts sought against Grocon despite both the Twelfth and Thirteenth Respondents being in external administration. The external administration of the Grocon Respondents ultimately did not bear on the resolution of the issues to be determined in the Bank Guarantee Case.

115    In the alternative, Grocon submits that the Applicants’ claims as against Grocon were contrary to known facts after 1 April 2021. This is based on the evidence that Grocon’s solicitors on that date wrote to the Applicants stating there was very limited prospect of recovering “property” subsisting in the bank guarantee drawdown monies, and indicating that they would provide access to Grocon’s books and records so the Applicants could confirm this matter for themselves. The evidence given by Grocon is that the Applicant did not take up that opportunity. The correspondence annexed to the affidavit of Leo Freckelton affirmed on 27 September 2021 (‘Freckelton Affidavit’) indicates that the Applicants were unwilling to meet Grocon’s demand to meet their reasonable costs of the gathering of that information or material, and so the further information was never provided.

116    Grocon further submits that, on 18 June 2021, Grocon’s solicitors wrote to the Applicants identifying the difficulties with, inter alia, tracing and the binding authority prohibiting the claim proceeding. Grocon’s evidence is that no substantive response was received. While there is no substantive response in evidence to the 18 June 2021 letter, there is correspondence annexed to the Freckelton Affidavit indicating the Applicants’ engagement with Grocon’s contentions between 9 April 2021 and 15 April 2021. In short, the Applicants disputed Grocon’s statement of the effect of the proprietary tracing principles in the circumstances and also referred to having potential recourse against another company or companies in the Grocon group, which it was assumed possessed greater funds than the Twelfth and Thirteenth Respondents, against which the Applicants’ claims could be satisfied.

117    Then, Grocon submits that their Concise Statement Response filed on 1 September 2021 was required to respond to the Applicants’ Receivables Case in its Further Amended Concise Statement because the Applicants had not amended their Further Amended Concise Statement to remove the Receivables Case. Grocon at [24] of their submissions also refer to other matters which they submit indicate that the Applicants’ conduct of the proceeding has not been in accordance with the overarching purpose mandated by s 37M of the FCA Act, namely:

(a)    writing to the Court the day before a case management hearing seeking leave to amend the Further Amended Concise Statement, without having previously raised that matter with Grocon;

(b)    not serving the winding up proceeding Application on Grocon until two nights before the hearing of the Application, despite Grocon having lodged a proof of debt in the liquidation; and

(c)    failing to cooperate to narrow the issues in dispute by engaging with Grocon’s correspondence about the issues with the main proceeding, and reviewing Grocon’s books and records to confirm for itself that proprietary recovery was effectively impossible.

118    I do not consider the actions of the Applicants as alleged to be inconsistent overall with the overarching purpose mandated by s 37M of the FCA Act. With respect to the allegation at (c), I do not consider that the evidence filed by Grocon sufficient to support a finding that the Applicants failed to cooperate to narrow the issues in dispute in the main proceeding, nor a finding that the Applicants acted unreasonably in not reviewing Grocon’s books and records where Grocon insisted on the Applicants meeting Grocon’s reasonable costs of gathering the relevant information. Properly considered, Grocon’s statement to the Applicants, not supported by verified books and records, that there was very limited prospect of the Applicants recovering property subsisting from the bank guarantee drawdown monies, is of little weight in my assessment of the factors bearing on an order of indemnity costs.

119    As a whole, I do not accept Grocon’s submissions that costs should be ordered against the Applicants on an indemnity basis in respect of the applications against Grocon, either as a whole, after 31 December 2020, or after 1 April 2021. For the reasons I have expressed, with the applications against Grocon now having been dismissed, I would order that costs in the proceeding be taxed on an ordinary basis. The proceeding against Grocon being dismissed, the taxation will proceed in accordance with the FCR.

120    As a final matter, I note that the Applicants sought orders that they pay Grocon’s costs of the proceeding as and from 31 December 2020 for the Thirteenth Respondent and 31 May 2021 for the Twelfth Respondent, otherwise each party bear their own costs of the proceeding. It is to be noted that 31 May 2021 is the date on which both the Twelfth and Thirteenth Respondents entered into a deed of company arrangement (‘DOCA’). Even after receiving submissions from the Applicants in relation to this proposed order, the basis upon which the Applicants sought the order is unclear. I do not accept the Applicants’ submissions and do not qualify the costs order in relation to Grocon by reference to the dates proposed by the Applicants.

Whether costs ordered be taxable immediately

121    Each of the Respondents sought that any costs order against the Applicants be taxable immediately or forthwith. Aside from the applications against Grocon, the applications against the Respondents are still before the Court. The issue to be determined is whether it is in the interests of justice for the costs orders I am making in respect of the Applicants’ now dismissed Bank Guarantee claims to be taxable immediately, or whether it is preferable for taxation to be deferred to the final determination of the main proceeding.

122    Section 43(3)(a) of the FCA Act expressly empowers the Court to “make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial”. Whilst the liability trial was not an interlocutory application (in relation to which costs are not taxable immediately unless otherwise ordered pursuant r 40.13 of the FCR), it is useful to consider the several recognised circumstances which warrant departure from the ordinary rule for deferred taxation in interlocutory applications and for the Court to order costs be taxed and paid immediately, including:

(a)    where the conduct of the unsuccessful party was unreasonable, reprehensible or involved want of competence and diligence;

(b)    where there is likely to be considerable delay before the final completion of the proceeding;

(c)    where the matter the subject of the costs order involved a separate or discrete issue; and

(d)    whether security for costs has been provided.

See, for example, McKellar v Container Terminal Management Services Ltd [1999] FCA 1639; Dale v Clayton Utz (No 3) [2013] VSC 593 at [65]-[85]; Setka v Abbott [2013] VSCA 376 at [27] and Richmond v Ora Gold Ltd [2020] FCA 70 at [33].

123    The Respondents submit that any costs ordered be payable or taxable immediately or forthwith, on the basis that a line should now be drawn under the proceeding thus far by an award of costs. The Respondents submit the following:

(a)    Although the main proceeding as a whole is not yet at an end, it is unclear when the final determination of the proceeding following any quantification may occur. They have been required to incur substantial costs in contesting the liability trial which was not competently or diligently conducted by the Applicants. Given the parties have been subject to this proceeding for 5 years already, they should not be kept out of pocket any longer.

(b)    Further, the orders to be made dismissing substantial parts of the Applicants’ case are properly to be seen as ‘final’ orders determining the parties’ respective rights and liabilities, not ‘interlocutory’ orders. The hearing was “a separate and completed phase of the proceedings”, on which costs should be payable immediately: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [18] per Barrett J. It is akin to a trial on a separate question, on which costs “should not await the conclusion of the proceedings” absent “compelling reasons”: Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822 at [21] per Pembroke J.

(c)    It may well be that evidence that was admitted (for example, contracts) or which was unsuccessfully tendered (for example, certain books and records of the Hastie Entities) will be utilised in subsequent stages of the proceedings (if they continue). These possibilities are just vicissitudes of fragmented litigation and do not weigh against the making of a general costs order at this stage. The Court should adopt a pragmatic and relatively broad-brush approach to the question of costs in circumstances where the Applicants have failed on every aspect of the claims in the proceedings thus far.

(d)    All of these factors support an immediate taxation of costs awarded following the liability trial: see Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 5) [2018] FCA 19 at [6]-[11] (Perram J).

124    Multiplex and John Holland made further submissions in relation to immediate taxation, having regard to security of costs undertakings provided to them by the Commonwealth. The Court raised the question at J[459] whether costs should be deferred in circumstances where security has been provided. Multiplex and John Holland submit that deferral is not appropriate, by reference to the following matters:

(a)    Security has been provided by the Commonwealth. With the Commonwealth as the security provider, there can be no suggestion that an adverse costs order at this stage of the proceedings would prejudice their further continuation because (for example) of a lack of funds.

(b)    Presumably the Commonwealth has taken (and still takes) the view that it will benefit if the Applicants succeed in the proceedings (it would seem in some way by subrogation into employees’ priority claims).

(c)    That being the case, the Commonwealth should take the burden of the Applicants’ lack of success to date. It is appropriate that the costs orders ought to be made against the Applicants, such that the undertaking will be engaged in response to those orders.

125    The Applicants do not make any submissions in relation to the specific question as to whether costs ordered be taxable forthwith or be deferred. Rather, the Applicants rely on their broader position that it is not appropriate to make any costs orders in respect of the Bank Guarantee Case where the Receivables Case is yet to be determined.

126    For the reasons detailed earlier, I have determined that it is not appropriate to order indemnity costs at this stage for any of the Respondents. However, in respect of the Applicants’ claims that have been dismissed in respect of the Bank Guarantee Case and for which I have previously determined that an ordinary costs order should be made, I have decided that such costs should be taxable forthwith. Apart from the Respondents’ submissions regarding security of costs, which in my view may weigh equally against costs being taxable immediately (as there is no risk that costs will not eventually be recoverable), I accept the Respondents’ submissions.

127    For the reasons I have earlier explained, it is appropriate to make a further order in respect of Multiplex, Scentre and Laing O’Rourke, so that they have the option to either enforce the ordinary costs order taxable forthwith with respect to the Bank Guarantee Case claims, or to instead elect to pursue their application for indemnity costs in respect of the proceeding as a whole having regard to the evidence of offers of settlement they have filed with the Court, which application can only be finally determined once the Receivables Case has been determined.

128    In addition, a number of the Respondents seek an order that the costs ordered by the Court by paragraph 11 of the orders of 29 January 2021 in this proceeding be taxed forthwith, pursuant to FCR r 40.13. It is appropriate for the Court to make that order now.

129    Finally, John Holland notes that there is an outstanding application for costs in relation to the discovery application that was heard by Registrar Gitsham. Registrar Gitsham decided the application on 24 December 2021 but did not deal with the parties’ subsequent submissions on costs. It is appropriate for the Court to exclude the costs of that discovery application from the orders other than reserving them for later consideration. I therefore note this matter in the orders I make in the main proceeding.

Future conduct of the main proceeding

130    Each of the Respondents now seek an order for mediation as between the Applicants and each Respondent separately unless otherwise agreed.

131    The Applicants seek an order that they and each of the Respondents participate in a mediation conference. However, the Applicants also seek various other orders so as to progress the envisaged quantification trial prior to such mediation with a view to the Court finally determining the Receivables Case.

132    It is sufficient that I summarise the orders proposed by the Applicants as follows:

(1)    that certain affidavits evidencing the particular contractual terms and factual circumstances underlying each receivables claim be tendered as read in the main proceeding;

(2)    that the following question identified at J[238] be heard separately by a Judge of this Court: whether the construction and operation of the particular contractual terms and the factual circumstances underlying what occurred in each project is sufficient to convince this Court, on the balance of probabilities, that a debt stated in the Liquidator’s records is not proven?;

(3)    that each Respondent provide discovery of documents in the categories considered previously by Registrar Gitsham in reasons dated 23 December 2021;

(4)    that each Respondent file and serve an affidavit for the purpose of convincing this Court, on the balance of probabilities, that the Respondent was not as at 28 May 2012 indebted to the Hastie Entity in the sum recorded in the debtor’s ledger or sums recorded in the Liquidator’s records for that Hastie Entity;

(5)    that the Applicants and each Respondent participate in a mediation conference by 31 March 2023; and

(6)    that the proceeding be listed before a Judge of this Court for a further case management on a date after 3 April 2023.

133    The Applicant’s proposed orders are fundamentally based on the premise of proposed order 2 that the Receivables Case now is to be determined by this Court by the docket Judge to whom this matter will be listed. The procedure to be followed prior to the determination of the Receivables Case is provided by the other proposed orders, about which I make the following brief comment:

(a)    The Applicants’ proposed orders 1 and 4 are based on their submission that the final determination of the main proceeding requires that the books and records of the Hastie Entities be tendered and read into the evidence before the Court, so that the question posed in proposed order 2 may be determined by the Court in accordance with s 1305 of the Corporations Act. However, in my view, it is not necessary for such evidence to be tendered or filed prior to mediation.

(b)    The Applicants’ proposed order 3 is purportedly based on the reasons of Registrar Gitsham in this proceeding dated 23 December 2021, which were to the effect that certain categories of discovery by the Respondents were not relevant to the liability trial, but were relevant to the remaining issues in dispute. In my view, the matter of further discovery of documents is one concerning the future conduct of this proceeding which should be determined by the docket Judge, again, after the mediation. However, the Court would expect the parties to the mediation to share relevant information that would assist the resolution of the remaining issues in dispute so that the mediation may be meaningful.

(c)    The Applicants’ proposed order 5 appears to envisage a joint mediation conference involving the Applicants and each of the Respondents together. In my view, that would not be appropriate unless the parties agree to a joint mediation.

134    Having heard from the parties at the case management hearing, I am not convinced that it is appropriate to make the Applicants’ proposed orders for the future conduct of this proceeding. At this point, it is most efficient for mediation to be held prior to any further steps in the proceeding being taken. In particular, it is important for the Liquidator to consider the statement that I made at J[456] that, on the present evidence before the Court, “it is difficult to conclude that the Liquidator would be justified and acting reasonably to continue to pursue the receivables claims”. If there is no further evidence contradicting the findings that I made at J[215]-[238] and having regard to the effect of s 1305 of the Corporations Act properly understood, further disputation and a final Court determination of a further separate question as sought by proposed order 2 should not be necessary. If that is the case, the remaining issues as to the calculation of set-off and the accounting of surplus proceeds of the bank guarantees should be amenable to resolution by mediation. I interpolate that in any event I do not consider a further separate question is appropriate; the proceeding can continue to completion in the normal way if not settled at mediation.

135    I will order that each of the Respondents take part in mediation, separately or, if they otherwise agree, together with any other Respondent, if the Applicants also agree and that the matter be re-listed for a case management hearing on a date to be fixed before the docket Judge.

Referral of issues to a referee

136    At J[458], I stated that I would refer the remaining issues in the main proceeding that were not resolved to an appropriately qualified referee. It is convenient to make some observations as to appointing a referee.

137    Section 54A of the FCA Act provides that the Court:

may ... refer ... a proceeding in the Court[,] or ... one or more questions arising in a proceeding in the Court[,] to a referee for inquiry and report in accordance with the Rules of Court.

138    In Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2012) 203 FCR 520; [2012] FCA 558 at [35]-[36], Rares J identified the manner in which the discretion in s 54A(1) is to be exercised as follows:

[35]    The discretion in s 54A(l) is one that must be exercised judicially, having regard to the subject matter, scope and purpose of the [FCA] Act itself... Thus, factors to which the Court ordinarily would have regard in considering the exercise of the power to order a reference under s 54A(l) are:

(1)    the policy that the usual mode of trial is by judge alone: s 39;

(2)    the overarching purpose of the Court’s civil practice and procedure rules and the factors referred to in s 37M so far as they are relevant to the exercise of the discretion;

(3)    the legislative purpose for the recent introduction of the additional mode of trial for which s 54A provides.

[36]    An important principle of statutory construction is that it is quite inappropriate to read provisions, such as s 54A(1), that confer jurisdiction or grant powers to a court, by making implications or imposing limitations which are not found in the express words… The grant of power in s 54A is not confined to any particular situation, category of litigation or otherwise…

[citations omitted]

139    The referral process is subject to Division 28.6 of the FCR. The Court retains control of all stages of the referral process. The Court “may appoint a person that it considers appropriate as referee”: FCR, r 28.62. The Court may give directions about “how the inquiry should be conducted” or “any matter arising in relation to the inquiry”: FCR, r 28.65(1). The referee “must conduct the inquiry in accordance with any directions made by the Court”, but “if the Court has not made any directions about how the inquiry should be conducted, the referee may conduct the inquiry in any way the referee thinks fit”: FCR, rr 28.65(1) and 28.65(3). The referee must provide the Court with a written report setting out the referee’s “opinion on the matter” referred and the “reasons for the opinion”: FCR, rr 28.61 and 28.66. Upon the receipt of the report, and upon the application of a party, the Court may take certain steps, including the adoption or rejection of the report in whole or in part: see FCR, r 28.67.

140    There are many authorities which discuss the appointment of referees to inquire and report into claims: see, eg; Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2012) 203 FCR 520; [2012] FCA 558; Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 2) [2012] FCA 559; Kadam v MiiResorts Group 1 Pty Ltd (No 4) (2017) 252 FCR 298; [2017] FCA 1139 (‘Kadam’); Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340; CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) (2018) 268 FCR 590; [2018] FCA 2112; VoR Environmental Australia Pty Limited v Taset Inc (No 2) (2019) 385 ALR 312; [2019] FCA 1094; Stone v Ebeid [2020] FCA 343; Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1093 and Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784.

141    In Kadam, Lee J made orders which provide a useful example, but in every proceeding different considerations may apply.

142    I note that the Referee and Assessor Practice Note (GPN-REF) in this Court provides as follows:

Conduct of Inquiry

2.9    Upon an order of referral being made, the parties will generally be required to give a brief statement of the findings of fact and law contended by the party to the referee and any other party within the time fixed by the Court or the referee (see r 28.65 of the Federal Court Rules).

2.10    The conduct of an inquiry by a referee is subject to the control and direction of the Court. However, subject to any order made by the Court to the contrary, a referee:

(a)    may conduct the inquiry in any way that the referee thinks fit so as to enable a just, efficient, timely and cost-effective resolution of the reference without undue formality; and

(b)    will not be bound in the inquiry by the rules of evidence but may be informed in any way that the referee thinks fit.

2.11    Depending upon the complexity of the proposed inquiry, when appointing a subject matter referee, the Court may appoint an independent barrister to provide assistance to the referee to ensure:

(a)    the referee’s report addresses the correct questions and is expressed in such a way as to maximise its usefulness; and

(b)    the inquiry is conducted in accordance with the requirements of procedural fairness.

    [emphasis added]

143    I observe that there is the possibility that the referee in conducting the inquiry may be directed not to be bound by the rules of evidence. I should express some disquiet with such a direction, although I note it has been made previously, as in Kadam. The problem I have is that the Evidence Act 1995 (Cth) (‘Evidence Act’) is binding on the Court to apply, and the reference to a referee cannot override the operation of the Evidence Act upon the final decision of a Judge of this Court. In other words, at some stage of the judicial decision-making process, before a Judge accepts a report from a referee, the Judge must apply the provisions of the Evidence Act.

144    In this proceeding, it may be that any evidentiary issues, such as in relation to s 1305 of the Corporations Act mentioned earlier, be determined by the Court before the reference is made by the Judge, so that only admissible material is allowed to be relied upon by the referee. Alternatively, but probably not as efficiently, the referee could consider all the material put before them, with the referee reserving evidentiary rulings for a later decision of the Court. As I am not now appointing a referee and not determining the exact terms of reference, I go no further than the above remarks. Of course, that future docket Judge will exercise their own discretion depending on all the circumstances existing after the outcome of the mediations that have been ordered to occur is known.

The winding up proceeding

145    Each of the Respondents seek orders that the winding up proceeding (as defined in the Liability Reasons) be dismissed and that the Plaintiffs pay the costs of the Respondents who were given leave to appear in the proceeding.

146    The Applicants seek orders that the winding up proceeding be stayed pending final orders in the main proceeding, and that costs be reserved.

147    It is not appropriate to stay the winding up proceeding. The premise underlying the Application made in the winding up proceeding was the Applicants’ claims in relation to s 468 of the Act as part of its Bank Guarantee Case. To the extent that such claims were ever pleaded, those claims are now to be dismissed in the main proceeding. There is no utility in the winding up proceeding being stayed. As I indicated at J[442], the winding up proceeding should be dismissed, with costs in favour of the Respondents who were granted leave to appear.

148    It was submitted by Grocon that costs should be granted on an indemnity basis. However, on the same basis as I discussed regarding indemnity costs in the main proceeding, I am not satisfied that there are any circumstances sufficient to justify awarding indemnity costs, and so I would only order costs on an ordinary basis.

149    An issue arose as to whether the costs order in relation to the winding up proceeding should be made in the main proceeding, as the Application was borne out of the conduct of the main proceedings. I raised a possible issue in relation to the ordering of costs in the winding up proceeding at J[443]. However, no issue has been raised by the Applicants, and with the Court having power to make a costs order in favour of non-parties in appropriate circumstances, I see no reason (even to aid possible recovery) not to follow the usual course of ordering the incidence of costs in the winding up proceeding itself.

Disposition

150    I make the following orders in the main proceeding:

(1)    The orders and directions sought by the Second Applicant in the “Applicants’ Proposed Orders and Directions” dated 10 May 2022, included as an Appendix to the Court’s reasons in Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 are refused.

(2)    The proceeding as against the Twelfth and Thirteenth Respondents (together, ‘Grocon’) is dismissed with costs.

(3)    The application for summary judgment by the Third to Fifth and Thirtieth Respondents filed 7 June 2021 is dismissed with costs.

(4)    Leave is granted for the Applicants to rely on an Amended Reply dated 6 July 2022 to the Fifteenth Respondents’ Amended Defence dated 17 May 2022, other than paragraphs 5 to 9 and 11,

(5)    The Applicants pay the Fifteenth Respondent’s costs of and incidental to the Applicants’ application for leave to file an Amended Reply dated 6 July 2022 as against the Fifteenth Respondent.

(6)    The proceeding is dismissed in relation to:

(a)    the claims against the First and Second Respondents (‘Multiplex’) referred to in the Further Amended Points of Claim lodged for filing on 22 March 2022;

(b)    the claims against the Third Respondent (‘Lendlease’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(c)    the claims against the Fourth and Thirtieth Respondents (‘Baulderstone’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(d)    the claims against the Fifth Respondent (‘Abigroup’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(e)    the claim against the Seventh Respondent (‘Badge WA’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(f)    the claims against the Eighth Respondent (‘Badge Qld’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(g)    the claims against the Fourteenth Respondent (‘Hansen Yuncken’) referred to in the Further Amended Points of Claim filed pursuant to leave granted by Middleton J on 30 March 2022;

(h)    the claims against the Tenth Respondent (‘CPB’) referred to in the Further Amended Points of Claim filed on 6 April 2022;

(i)    the claims against the Nineteenth Respondent (‘Thiess’) referred to in the Amended Points of Claim filed 5 March 2021;

(j)    the claims against the Fifteenth Respondent (‘John Holland’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(k)    the claims against the Sixteenth Respondent (‘Laing O’Rourke’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021;

(l)    the claims against the Twentieth to Twenty-Third Respondents (‘Watpac’) referred to in the Further Amended Concise Statement lodged for filing on 26 February 2021;

(m)    the claims against the Twenty-Fifth Respondent (‘Scentre’) referred to in the Amended Points of Claim lodged for filing on 26 February 2021,

as particularised in Appendices 1-4 to this Order.

(7)    The Applicants and each of the Respondents (save for Grocon) are to attend a mediation on or before 31 March 2023:

(a)    separately from any other Respondent in the proceeding; or

(b)    together, if any Respondents agree to attend together and if the Applicants also agree.

(8)    Following the mediation(s), the Applicants and Respondents (save for Grocon) must report back to the Court by no later than 14 April 2023.

(9)    The proceeding be listed for a case management hearing on a date to be fixed before the docket Judge.

(10)    The costs ordered by paragraph 11 of the orders of the Court made 29 January 2021 are taxable immediately.

(11)    The Applicants are to pay the Respondents’ costs of and incidental to the claims of the Applicants dismissed by paragraph 6 of these orders referred to in Appendices 3 and 4 to these orders.

(12)    The costs of and incidental to the proceeding are otherwise reserved including the costs of the discovery applications referred to Registrar Gitsham and determined on 24 December 2021.

(13)    Subject to paragraph 14 of these orders, the costs ordered by paragraph 11 of these orders are to be taxed immediately.

(14)    If Multiplex, Laing O’Rourke or Scentre elect by notice in writing to the Applicants on or before 31 March 2023 to pursue an indemnity costs order on the basis of any offer of compromise or Calderbank offer once the main proceeding is finally determined instead of enforcing paragraphs 11 and 13 of these orders, their costs will be reserved.

151    I make the following orders in the winding up proceeding:

(1)    The proceeding be dismissed.

(2)    The Plaintiffs are to pay the costs of and incidental to this proceeding of any Respondent in proceeding VID1277 of 2017 which was granted leave to appear in this proceeding or which filed submissions in this proceeding.

Associate:

Dated:    22 December 2022

SCHEDULE OF PARTIES