Federal Court of Australia

Hyder v Commissioner of Taxation [2025] FCA 337

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to file his application for leave to appeal be extended to 17 July 2024.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the respondent’s costs of the application, as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to file its application for leave to appeal be extended to 17 July 2024.

2.    The application for leave to appeal be dismissed.

3.    The applicant pay the respondent’s costs of the application, as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    These reasons for judgment address applications for an extension of time and leave to appeal from costs orders made by a judge of this Court in two proceedings on 18 June 2024. His Honour’s reasons for making those orders are set out in Hyder v Commissioner of Taxation [2024] FCA 654 (J).

2    In the first proceeding, QUD 389 of 2024, the applicant, Mr Hyder, is dissatisfied with the primary judge’s order in proceeding QUD 558 of 2023 that there be no order as to costs.

3    In the second proceeding, QUD 390 of 2024, the applicant, EMH IV Pty Ltd, is dissatisfied with the primary judge’s order in proceeding QUD 559 of 2023 that the respondent Commissioner pay EMH IV’s costs on the usual basis, rather than on an indemnity basis.

4    For the reasons developed below, each applicant should be granted an extension of time; and each application for leave to appeal should be dismissed.

B.    The primary judgment

5    The relevant procedural history was summarised by the primary judge at J[14] to [28]:

14    After the audit was completed, the Commissioner issued:

1.    on 20 May 2020: an assessment to EMH IV as trustee of the EMH IV Trust in respect of the 2015 income year;

2.    on 22 May 2020:

•    an amended assessment to Mr Hyder in respect of the 2015 income year; and

•    an amended assessment to Mr Hyder in respect of the 2016 income year; and

3.    on 7 September 2020, penalty assessments to EMH IV and Mr Hyder.

15    EMH IV and Mr Hyder objected against the assessments. On 8 February 2021, the Commissioner issued a Notice of Objection Decision disallowing all taxation objections.

16    These events ultimately resulted in various proceedings in this Court and in the Administrative Appeals Tribunal. There was a judicial review proceeding determined by Greenwood J which was also the subject of an appeal: Hyder v Commissioner of Taxation [2022] FCA 264 and Hyder v Commissioner of Taxation [2023] FCAFC 29; 297 FCR 124. An application for special leave to appeal was dismissed: [2023] HCASL 99.

17    There were also five proceedings in this Court and two in the Tribunal each of which was listed for hearing for two weeks at the end of April and early May this year.

18    The first proceeding was Elton Matthew Hyder IV v Commissioner of Taxation (QUD 40 of 2021). This was Mr Hyder’s appeal from the Commissioner’s objection decision concerning the 2015 and 2016 years. The first issue in this proceeding concerned whether Div 7A of the Income Tax Assessment Act 1997 (Cth) applied to deem Mr Hyder to have received unfranked dividends from SEPL:

(a)    in the 2015 and 2016 years, in amounts of $13.25 million and $1.35 million withdrawn by Mr Hyder from the SEP bank account; and

(b)    in the 2016 income year, in an amount of $3.35 million that was reclassified from a UPE held in the EMH IV Trust to a capital contribution from Mr Hyder to the EMH IV Trust.

19    The second issue in this proceeding was whether, if Div 7A did not apply, the general anti-avoidance provision in Part IVA of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) applied to include a tax benefit in Mr Hyder’s assessable income. The assessments issued to Mr Hyder were cumulative to the assessment issued to (and ultimately paid by) SEPL, but alternative to the assessment issued to EMH IV.

20    The second proceeding was EMH IV as trustee for the EMH IV Trust v Commissioner of Taxation (QUD 41 of 2021). This was EMH IV’s appeal under Part IVC of the Taxation Administration Act 1953 (Cth) (TAA 1953) in relation to the objection decision concerning the assessment issued to EMH IV which gave effect to the Commissioner’s view that s 100A of the ITAA 1936 applied with the result that the SEP was deemed not to be presently entitled to the income appointed to it in the 2015 income year. If EMH IV’s Part IVC appeal in this proceeding were unsuccessful, then the first proceeding would not strictly have needed to be determined because the assessments issued to Mr Hyder were in the alternative to the assessment issued to EMH IV.

21    The two Tribunal proceedings were Part IVC reviews of the objection decisions concerning penalties in relation to the assessments the subject of QUD 40 and QUD 41.

22    QUD 40, QUD 41 and the two Tribunal proceedings were heard first. Just before the end of closing submissions these four proceedings were resolved by consent. The consent position was that s 100A applied with the result that the SEP was never presently entitled to the income appointed to it. The Part IVC appeal in QUD 40 was therefore allowed by consent and the Part IVC appeal in QUD 41 was dismissed. The parties agreed to bear their own costs of these proceedings.

23    The two Tribunal proceedings were also resolved by consent. The objection decisions the subject of both proceedings were varied such that the objections were allowed in full. The Commissioner conceded that there could be no scheme shortfall penalty in relation to the assessment issued to EMH IV, notwithstanding the parties’ agreement that s 100A applied.

24    The remaining three Federal Court proceedings were scheduled to be heard immediately after the four proceedings just mentioned. These proceedings were:

•    Hyder & Ors v Commissioner of Taxation (QUD 384 of 2022): This was an application brought by Mr Hyder, EMH IV as trustee for the EMH IV Trust and ACN 603 939 939 Pty Ltd (formerly SEPL) for judicial review of the Commissioner’s decision to refuse to exercise discretion under s 255-10 in Sch 1 to the TAA 1953 to defer the due dates for payment of the tax-related debts of Mr Hyder and EMH IV for the 2015 and 2016 income years.

•    Hyder v Commissioner of Taxation (QUD 558 of 2023): This was Mr Hyder’s application for judicial review of the Commissioner’s decision to refuse to remit all of the GIC that had accrued with respect to his income tax liability for the period 15 June 2020 to 20 April 2023.

•    EMH IV Pty Ltd as trustee for the EMH IV Trust v Commissioner of Taxation (QUD 559 of 2023): This was EMH IV’s application for judicial review of the Commissioner’s decision to refuse to remit all of the GIC that had accrued with respect to its income tax liability for the period 7 June 2016 to 20 April 2023.

25    At the commencement of the hearing of these three remaining proceedings, QUD 558 was resolved by consent, with an order that the proceeding be dismissed, but costs reserved. This left two proceedings for determination: QUD 384 and QUD 559. These two proceedings were heard on 2 May 2024. On 7 May 2024, QUD 384 was dismissed and QUD 559 was allowed.

26    The orders made in QUD 384 included:

1.    The application be dismissed.

2.    Unless a party applies for a different order as to costs within 7 days of these orders, the applicants pay the respondent’s costs.

27    The orders made in QUD 559 included:

1.    The application be allowed.

2.    The decision of the respondent made on 14 November 2023 be set aside.

3.    The applicant’s request for remission of GIC under s 8AAG of the Taxation Administration Act 1953 (Cth) be remitted to the respondent for reconsideration by a different decision-maker in accordance with law.

4.    Unless either party applies for a different order as to costs within 7 days of these orders, the respondent pay the applicant’s costs.

28    The parties sought variations to the orders which had been made in QUD 384 and 559 and addressed the question of costs which had been reserved in QUD 558. Mr Hyder (and where relevant his associated entities) sought costs in each of QUD 384, QUD 558 and QUD 559 on an indemnity basis. The Commissioner’s primary position was that there should be no order as to costs in any of the proceedings. The Commissioner submitted, in the alternative, that the appropriate orders were:

•    the applicants pay the respondent’s costs of and incidental to QUD 384 and QUD 558;

•    the respondent pay 75% of the applicant’s costs of and incidental to QUD 559; and

•    there be no order for costs of and incidental to the costs applications.

(bold emphasis in original; underline emphasis added)

6    Against this background, the question for determination by the primary judge in both QUD 558 and QUD 559 was whether the conduct of the Commissioner was unreasonable and thus provided a basis for the indemnity costs orders sought by the applicants.

7    The primary judge noted at J[29] that the applicants’ submissions to the primary judge identified two forms of conduct which they contended were unreasonable.

8    The first was described as the Commissioner’s conduct in maintaining from 2020 and until the final day of the hearing, a “hopeless” and “untenable” position that EMH IV was liable to pay a penalty on the assessment issued to it (penalty position) (J[29], [34]). In this regard, it was common ground that on the final day of the hearing the Commissioner, in his closing submissions, made a concession that a penalty was not payable in the event that the primary judge concluded that EMH IV was found to be liable on the assessment issued to it (J[40]).

9    The applicants invited the primary judge to infer that if the Commissioner had not taken the penalty position, then the dispute with the Commissioner would have been settled before any of the various sets of proceedings had been commenced (J[30]).

10    The primary judge did not accept that the Commissioner acted unreasonably in the manner for which the applicants contended. In particular:

(1)    at J[32] his Honour noted the reliance placed by the applicants upon Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246; (2021) 151 ACSR 26 at 28 to 29 [10] (Wigney J) but then noted at J[33] the following further passage from that judgment:

[11] Two things should perhaps be noted about these descriptions of the types of cases in which an indemnity costs order may be warranted. First, they use expressions which suggest a high degree of certainty concerning the deficiencies in the losing party’s case. It would appear not to be enough that the losing party’s case was simply weak or tenuous. Second, and relatedly, the deficiencies must be sufficiently manifest and clear such that it can be inferred that the losing party would or should have appreciated them when the action was commenced or continued, at least if they had given proper consideration to, or been properly advised about, the merits of their case.

[12] In assessing whether a case can be said to “have no chance of success”, or to be “hopeless” or “foredoomed to fail”, and that the losing party should have known that to be the case, it is also necessary to be wary of reasoning with the benefit of hindsight. As Goldberg J said in Re Kingsheath Club of the Clubs Ltd (in liq) [2003] FCA 1589 at [5] (Kingsheath Club), it is “easy with hindsight to make an observation that an action has no chance of success, after the matter has been fully argued and has enjoyed considered attention of experienced solicitors and senior and junior counsel”. ;

(2)    the primary judge did not accept that the commencement of the various proceedings was the result of the penalty position taken by the Commissioner. Rather, his Honour considered that such proceedings were commenced as a result of various decisions including forensic decisions made by the applicants (J[36]);

(3)    his Honour was of the view that the concession was not one that ought obviously have been made when the proceedings were commenced or at an earlier time during the proceedings. In this regard, the primary judge noted that: the concession was not based on any argument advanced by the applicant’s legal representatives and clearly came as a surprise to them; it was tolerably clear that it was not until very late during the hearing that the Commissioner came to the view that the concession was necessary; the primary judge did not need to, and did not, address whether the concession was properly made; it could not be said that the Commissioner should have appreciated the issue when the proceeding was commenced or continued; and the issue which led to the concession was not obvious to either senior or junior counsel for the applicants who had examined with great care and in detail what arguments could properly be advanced on behalf of the applicants and did not raise the issue which the Commissioner considered required him to concede the penalties (J[40]);

(4)    with respect to QUD 558, which had resolved with the consequence there had been no determination of the merits of that proceeding, the Court should not embark upon an examination of the merits for the purposes of determining the question of costs (J[44]); and

(5)    relatedly, the primary judged noted that EMH IV succeeded in QUD 559 on a basis which it had not articulated in its lengthy written or oral submissions (J[45]).

11    The second form of conduct which the applicants contended was unreasonable was the Commissioner’s rejection of a series of offers expressed to have been made in accordance with the principles in Calderbank v Calderbank [1976] Fam 93 (J[35]). The primary judge did not accept this contention and found that:

(1)    none of the offers made by the applicants were shown to have been substantially better for the Commissioner than the result achieved in relation to litigation as a whole (J[37]);

(2)    the Commissioner’s rejection of each of the offers made by the applicants was reasonable (J[37]);

(3)    various offers to settle all of the proceedings had been made by the parties and each party had acted reasonably in the offers they made and in the rejections of offers they had conveyed, and each had engaged in genuine and meaningful attempts to settle all of the proceedings (J[38]);

(4)    there was no offer made solely in respect of either QUD 558 or QUD 559 (J[39]); and

(5)    it was not possible to manufacture a sensible case for an order for indemnity costs on the basis of the global settlement offers that were made (J[39]).

C.    Applications for an extension of time

12    Each applicant seeks an extension of time in which to bring their application. In circumstances where the Commissioner does not oppose the granting of such an extension, the period of default is short and an adequate explanation for the default has been provided, such extensions should be granted.

D.    Applications for leave to appeal

D.1    The proposed ground of appeal

13    In QUD 389, the proposed grounds of appeal (excluding the particulars, which are considered below) are as follows:

1    The exercise of the costs discretion by the Court below miscarried because:

(a)    the learned Primary Judge acted upon a wrong principle and allowed extraneous or irrelevant matters to guide or affect his Honour’s consideration;

(b)    the learned Primary Judge mistook the facts and failed to take into account material considerations;

(c)    the learned Primary Judge reached a conclusion which was unreasonable in refusing to order costs against the Respondent, Commissioner of Taxation, on the facts and circumstances of the matter before him and acted unreasonably and failed to exercise properly the discretion which the law reposed in the learned Primary Judge.

Particulars

...

(d)    the learned Primary Judge erred in making no orders for costs in matter No QUD 558/2023 between Mr Hyder and the Commissioner on the erroneous basis that the circumstances in matter No QUD 559/2023 between the Trustee and the Commissioner were distinguishable from the circumstances in matter No QUD 558/2023 on the basis that the assessment to the Trustee relevant in QUD 559/2023 was alternative to the assessment issued to Screaming Eagle, whereas the assessment to Mr Hyder relevant to matter No QUD 558/2023 was not alternative to the assessment issued to Screaming Eagle.

14    In QUD 390, the proposed grounds of appeal are essentially the same, save that paragraph (d) is not included.

D.2    Relevant principles

15    The principles relevant to an application for leave to appeal are well-established and not in dispute on this application. Each applicant must demonstrate that the decision in respect of which leave to appeal is sought is attended with sufficient doubt to warrant reconsideration and that if leave were to be refused in circumstances where the decision is wrong there would be substantial injustice to that applicant: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

16    A matter informing the exercise of the discretion to grant leave in the present case is that the orders in respect of which leave to appeal is sought are the product of the exercise of the Court’s discretion with respect to costs. The caution to be exercised in review of such decisions is also well-established: see, e.g., Waters v Commonwealth of Australia (Australian Taxation Office) [2015] FCAFC 46; (2015) 108 ACSR 445 at 446 to 448 ([8] to [10]) (Flick J, North and Katzmann JJ agreeing); Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153 at 158 [14] (Dowsett, Tracey and Bromberg JJ); Snowside Pty Ltd as trustee for the Snowside Trust, in the matter Boart Longyear Ltd [2019] FCA 2159 at [56] to [58] (Gleeson J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [15] (Griffiths J, Thomas and Stewart JJ agreeing); Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (Costs) [2024] FCAFC 155 at [5] to [6] (Perram, Downes and O’Sullivan JJ).

D.3    Is the primary judgment attended by sufficient doubt?

17    It is convenient to address proposed grounds (1)(a) to (c) by reference to the particulars thereto and to then consider proposed ground (1)(d).

18    As is apparent from the proposed grounds of appeal set out at [13] above, proposed grounds (1)(a) to (c) seek to challenge the primary judge’s exercise of the costs discretion based upon the principles described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 to 506 (Dixon, Evatt and McTiernan JJ).

D.3.1    Particular (i)

19    The first particular is:

The learned Primary Judge erred in not finding that the Commissioner unreasonably claimed, in 2020, and unreasonably maintained throughout four years of litigation until the final day of the hearing of Matter Nos QUD 40 and 41 of 2021 and the related penalty proceedings in the Administrative Appeals Tribunal (“AAT”) (collectively referred to herein as the “Part IVC proceedings”), that the Commonwealth was due a penalty of $4.5 million, that no other outcome was arguable such that a 50% reduction dd (sic) not apply, and General Interest Charge (“GIC”) was due on that penalty of (ultimately) $1.6 million from [EMH IV] as trustee of the EMH IV Family Trust (“the Trustee”) (“the Hopeless Claims”).

20    The primary judge’s reasoning for not accepting the applicants’ argument that the Commissioner acted unreasonably in maintaining the penalty position from 2020 until the final day of the hearing is summarised at [10] above. I discern no error in that reasoning. Further, this particular involves in substance an expression of disagreement with his Honour’s rejection of the applicants’ submissions, rather than the identification of any House v The King error.

D.3.2    Particular (ii)

21    The second particular is:

The learned Primary Judge erred in assigning subjective fault to [the applicants] for the Hopeless Claims being only admitted by the Commissioner at the conclusion of the Part IVC proceedings and in doing so misapplied the principles collected by this Court in ACCC v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26 at [7]-[12] (“Colgate-Palmolive”).

22    The applicants submitted that the primary judge erroneously took into account the fact that the applicants did not indicate to the Commissioner that the penalty position was unmaintainable, the error arising because this introduced a subjective element into an objective test of unreasonableness.

23    I do not accept this submission. As Wigney J explained in Colgate-Palmolive at [11] – in the passage set out by the primary judge at J[33] and reproduced at [10(1)] above – in order to ground a finding of unreasonable conduct in pursuing a case based upon deficiencies in that case, those deficiencies must be “sufficiently manifest and clear such that it can be inferred that the losing party would or should have appreciated them when the action was commenced or continued, at least if they had given proper consideration to, or been properly advised about, the merits of their case”. One way of testing the clarity of a suggested deficiency is to consider the actions (or inactivity) of the ultimately successful party or parties, being persons or entities likely to have been focussed on the viability of the case brought by the ultimately unsuccessful party, e.g., cases where one party notifies the other of the reasons why the latter’s case is doomed to fail. It is tolerably clear that in the present case, the primary judge was not attributing blame to the applicants nor suggesting that it was a pre-condition to proof of unreasonableness that the applicants had raised the contended deficiency with the Commissioner; rather the primary judge was objectively testing whether the contended deficiency was sufficiently manifest and clear that a finding of unreasonable conduct on the part of the Commissioner should follow. The applicants’ submission that the primary judge took into account an extraneous and capricious consideration by considering that the applicants and their counsel had not raised the weakness of the penalty position cannot be accepted.

D.3.3    Particular (iii)

24    The third particular is:

The learned Primary Judge erred in not finding that, but for the Hopeless Claims, the litigation would not have commenced, and [the applicants] could reasonably be expected in 2020 to have accepted the [EMH IV] assessment outcome that arose as soon as the Commissioner admitted the Hopeless Claims on the final day of the Part IVC proceedings. In this regard, the learned Primary Judge erred at para [36] in not finding that the assessment issued to Screaming Eagle Pty Ltd (“SEPL”) in the 2015 year of income was relevantly an alternative to Mr Hyder’s 2015 assessment. The learned Primary Judge ought to have found that each assessment issued to SEPL and Mr Hyder fell away entirely upon [EMH IV’s] acceptance of its 2015 income tax assessment issued as the explicit alternative to those assessments.

25    This particular involves two contentions. The first is a contention of error by the primary judge in failing to find that the penalty position was the cause of the litigation. This is a naked challenge to the primary judge’s rejection at J[36] of the applicant’s submissions and does not invoke any House v The King error.

26    The second contention is that the primary judge erred in failing to find that if the concession had been made at the time of the issue of the assessments in 2020, then the applicants could reasonably have been expected to have accepted the “[EMH IV] assessment outcome”. In circumstances where it was unnecessary for the primary judge, in view of his findings that the penalty position was not the cause of the litigation, to consider this submission, he did not err in failing to make the finding which the applicants contend ought to have been made. Again, there is no House v The King error.

27    This particular also assumes implicitly that the penalty position was an unreasonable position to take. The primary judge was not so persuaded and for the reasons set out above with respect to particular (i) his Honour’s conclusions in this regard are not attended by sufficient doubt.

D.3.4    Particular (iv)

28    The fourth particular is:

The learned Primary Judge ought to have held, applying the principles collected by this Court in Colgate-Palmolive, that the Commissioner, properly advised in 2020, ought never to have insisted that [either applicant] must pay “a substantial penalty” and “GIC thereon” and that the Commissioner ought to have insisted only that [EMH IV] pay its 2015 income tax assessment without penalty and that he would consequently withdraw or amend the assessments and the penalty assessments issued to SEPL and Mr Hyder.

29    As the applicants acknowledge, the primary judge correctly set out the relevant principles concerning indemnity costs, by reference to Colgate-Palmolive. His Honour also clearly took these principles into account in the exercise of his discretion. The applicants have not identified any misapplication of principle. Rather they assert, as they do with respect to particular (i), that his Honour erred in failing to find that the Commissioner’s penalty position was unreasonable in 2020. Again, I discern no error in his Honour’s reasoning and no House v The King error has been identified.

D.3.5    Particular (v)

30    The fifth particular is:

The learned Primary Judge ought to have held that, by reason of the Hopeless Claims, [the applicants] were put to the unnecessary expense of defending their alternative income tax assessments and their alternative penalty assessments issued in 2020. The learned Primary Judge ought to have found that the litigation arose as a result of the making of, and maintenance of, the Hopeless Claims and [the applicants] should be compensated by an award of the costs of these proceedings on an indemnity basis.

31    This particular, in substance, repeats earlier particulars concerning the issue of the penalty assessment being the cause of the litigation. For the reasons set out above, it raises no issue which casts doubt upon the primary judge’s decision.

D.3.6    Particular (vi)

32    The sixth particular is:

The learned Primary Judge ought to have held, applying Calderbank principles, that the Commissioner ought never have maintained the Hopeless Claims and thereby acted unreasonably in rejecting the Appellants’ settlement offers by insisting upon them as correct.

33    This particular starts from the proposition that the primary judge ought to have found that the Commissioner acted unreasonably in maintaining the penalty position. For the reasons set out above, the primary judge’s reasons for concluding that the Commissioner did not act unreasonably in this regard are not attended by sufficient doubt.

D.3.7    Ground 1(d)

34    Ground 1(d) is set out at [13] above. It is not framed as an assertion of error based on the application of House v The King. It rests on the premise that the primary judge’s reason for making no order for costs in QUD 558 was the observation in in J[44] to which I have added bold emphasis:

Proceeding QUD 558 was resolved by consent. It is not appropriate to embark on an inquiry into what the result would have been had the parties not resolved the proceeding by consent: Ex Parte Lai Qin. The circumstances in QUD 559 (in which EMH IV was successful) are distinguishable from the circumstances in QUD 558, including because the assessment to EMH IV (relevant in QUD 559) was alternative to the assessment issued to SEPL, whereas the assessment to Mr Hyder (relevant to QUD 558) was not alternative to the assessment issued to SEPL. Proceeding QUD 558 was resolved because the parties reached a consent position that the assessment to EMH IV would stand with the consequence that proceeding QUD 558 became moot. There should be no order as to costs in this proceeding.

35    As is plain from the remainder of J[44] and from the reasons for judgment generally, that observation was not the basis of the primary judge’s decision not to make a costs order in QUD 558. Rather, the basis for declining to make such an order was:

(1)    an application of the principle that the prima facie position where a proceeding has been resolved by consent is that there is to be no order as to costs, and it is inappropriate to embark on a detailed inquiry as to what the result would have been but for the resolution (J[41] and [44]); and

(2)    the submissions advanced by the applicants did not provide a reason to depart from that prima facie position.

36    This ground does not cast doubt upon the primary judge’s decision.

D.2.8    Conclusion as to sufficient doubt

37    For the reasons set out above, I am far from persuaded that the primary judgment is attended by sufficient doubt.

D.3    Substantial injustice

38    I turn now to consider whether, if leave were refused, and the primary judge’s decisions were wrong, the applicants would suffer substantial injustice.

39    In QUD 389, Mr Hyder submitted there would be substantial injustice by reason of the fact that he would be denied the benefit of a significant costs order to which he would otherwise be entitled. In this regard, in his affidavit in support of the application for leave to appeal in QUD 389, the solicitor for Mr Hyder deposed that: the costs incurred by Mr Hyder amount to approximately $500,000; and based upon his experience, he would expect Mr Hyder to recover approximately one-half of $500,000 on taxation of a bill of costs in the event that a costs order were made in Mr Hyder’s favour.

40    In QUD 390, EMH IV submitted that there would be substantial injustice because the applicants would not be properly compensated for being unreasonably forced to commence or continue with the litigation. In his affidavit in support of the application for leave to appeal in QUD 390, the solicitor for EMH IV deposed that based upon his experience, he would expect EMH IV to recover: $250,000 under the existing order; and a further $250,000 if the costs order were framed as an order for costs on an indemnity basis. In other words, the substantial injustice is contended to be the deprivation of costs of $250,000.

41    I accept that in each proceeding the particular applicant may suffer injustice if leave were to be refused and the primary judge’s decisions were wrong. However, the absence of sufficient doubt as to the correctness of the primary judgment is determinative of the applications for leave to appeal.

E.    Conclusion

42    In each proceeding there should be an extension of time to file the application for leave to appeal, and each application should be dismissed. Costs should follow the event. I will make orders accordingly.

Associate:

Dated:    10 April 2025