Federal Court of Australia

Chopsonion Pty Ltd (Controllers Appointed) v Watts Meat Machinery Pty Ltd (No 4) [2025] FCA 636

ORDERS

THE COURT ORDERS THAT:

1. The respondents are to pay the first applicant its costs for the period up to and including 31 May 2022 on a party and party basis, to be assessed as a lump sum if not agreed.

2. The respondents are to pay the first applicant its costs in pursuing both this proceeding and the Rolton proceeding from 1 June 2022 to 23 September 2022 on a party and party basis, to be assessed as a lump sum if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

3. The respondents are to pay the applicants their costs in pursuing both this proceeding and the Rolton proceeding from 24 September 2022 to 11.00am on 17 November 2022 on a party and party basis, to be assessed as a lump sum if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

4. The respondents are to pay the applicants their costs in pursuing both this proceeding and the Rolton proceeding from 11.00am on 17 November 2022 on an indemnity basis, to be assessed on a lump sum basis if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

5. Orders 1 to 4 are subject to pre-existing costs orders made in favour of the respondents on 15 June 2021, 12 August 2021, 23 September 2022 and 11 November 2022 with such costs to be assessed as a lump sum if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1. The first to sixth applicants are to pay the respondents their costs for the period up to and including 31 May 2022 on a party and party basis, to be assessed as a lump sum if not agreed.

2. In respect of costs of the respondents from 1 June 2022 to 23 September 2022, the first to sixth applicants are to pay the respondents the following costs on a party and party basis including any reserved costs, to be assessed as a lump sum if not agreed:

(a) Their costs attributable only to the defence of this proceeding; and

(b) 50% of the costs of the Rolton respondents in both this proceeding and the Watts proceeding on matters which were common to this proceeding and the Watts proceeding, but excluding costs attributable only to the defence of the Watts proceeding.

3. In respect of costs of the respondents from 24 September 2022, the applicants are to pay the respondents the following costs on a party and party basis, including any reserved costs to be assessed as a lump sum if not agreed:

(a) Their costs attributable only to the defence of this proceeding; and

(b) 50% of the costs of the Rolton respondents in both this proceeding and the Watts proceeding on matters which were common to this proceeding and the Watts proceeding, but excluding costs attributable only to the defence of the Watts proceeding.

4. The respondents are to pay the first to sixth applicants’ costs of the respondents’ application for security for costs that was dismissed on 25 October 2022, to be assessed as a lump sum if not agreed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1 On 15 January 2025, I delivered Reasons in this matter in which I found for the applicants in proceedings SAD 109 of 2020: Chopsonion Pty Ltd (Controllers Appointed) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4 (Watts proceeding) and reserved the question of interest and costs.

2 The Reasons also dealt with action no. SAD 76 of 2022, MEG Investments Pty Ltd and Ors v Rolton Pty Ltd and Ors (Rolton proceeding), which I had ordered be heard and determined at the same time as the Watts proceeding, with evidence in one being evidence in the other.  I dismissed the applicants’ claims in the Rolton proceeding.

3 After the publication of my Reasons, I heard argument on the question of interest in the Watts proceeding.  On 7 May 2025, I delivered separate reasons on the question of interest: Chopsonion Pty Ltd (Controllers Appointed) v Watts Meat Machinery Pty Ltd (No 3) [2025] FCA 457 and entered judgment for the successful applicants (Interest Reasons).

4 These further reasons deal with the question of costs and should be read in conjunction with the Reasons and the Interest Reasons.  The same terms and abbreviations apply.

The procedural history

5 The Watts proceeding and the Rolton proceeding were commenced in different courts.

6 The Watts proceeding was commenced in this Court on 31 July 2020 whereas the Rolton proceeding was commenced in the Supreme Court of South Australia before being cross-vested to this Court by reason of an order made by that Court on 14 April 2022.

7 The order transferring the Rolton proceeding was lodged in this Court on 9 May 2022.

8 On 1 June 2022, the Court ordered that the Rolton proceeding and the Watts proceeding be heard and case managed together with evidence in one proceeding being evidence in the other.

9 By orders made in both proceedings on 23 September 2022, the applicants in each matter were granted leave to file an amended originating application joining:

(a) Chopsonion as an applicant in the Rolton proceeding; and

(b) The first to sixth applicants in the Rolton proceeding (Lenders) as applicants in the Watts proceedings.

Principles

10 The principles concerning an award of costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) are well-settled.

11 The Court has a discretion to award costs which is broad and unfettered but must be exercised judicially.  Amongst other things, that involves taking into account the contextual features and facts of the litigation: Kazar v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113, [4] (Greenwood and Rares JJ).

The parties’ submissions and consideration

12 The ordinary rule is that costs follow the event.

Watts proceedings

13 The applicants in the Watts proceeding were successful in prosecuting the action such that the starting position is that they are entitled to an order for their costs of the action.

14 That is subject to the following matters:

(a) The costs of the Watts proceeding prior to the cross-vesting of the Rolton proceedings and subsequent common management of the two actions;

(b) The costs of the Watts proceeding after cross-vesting and common management up to 23 September 2023;

(c) The costs of the Watts proceeding for the period 24 September 2022 - 17 November 2022 at 11.00am;

(d) Whether the applicants should receive their costs after 11.00am on 17 November 2022, and if so, on what basis;

(e) Any orders reserving costs during the course of the matter; and

(f) The costs of common issues.

The costs of the Watts proceeding prior to cross-vesting and common management

15 Chopsonion seeks an order that for the period preceding the cross-vesting and subsequent common management of the two actions, the Watts respondents pay Chopsonion’s costs on a party and party basis for the period from 31 July 2020 to 8 May 2022.

16 That period is based upon common management of the two actions occurring as from 8 May 2022.  In fact, common management of the two actions did not occur until an order to that effect was made on 1 June 2022.  At the same time an order was also made that the two actions proceed to trial together with evidence in one action being evidence in the other.

17 As I understand it, an order in those terms is no longer disputed by the Watts respondents and there will be an order that the Watts respondents pay Chopsonion’s costs on a party and party basis for the period from 31 July 2020 to 31 May 2022.

The costs of the Watts proceeding after cross-vesting and common management up to 23 September 2023

18 On 23 September 2022, the Court granted leave in the Watts proceeding for the filing of an amended originating application and statement of claim by which the Lenders in the Rolton proceeding became the second to seventh applicants in the Watts proceeding.

19 Also on 23 September 2022, the Court granted leave in the Rolton proceeding for the filing of an amended originating application and amended statement of claim by which Chopsonion, who is the first applicant in the Watts proceeding, became the seventh applicant in the Rolton proceeding.

20 Chopsonion seeks an order that the Watts respondents pay Chopsonion’s costs on a party and party basis in pursuing the Watts proceeding and the Rolton proceeding for the period from 1 June 2022 to 26 September 2022, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

21 Given the order was made on 23 September 2022, I proceed on that basis and not 26 September 2022.

22 There is no reason why the ordinary rule should not apply.  On the issue of reserved costs, annexed to the applicants’ submissions on costs and interest filed 26 February 2025, is a schedule of interlocutory costs orders made in the Watts proceeding.  There are no reserved costs.

23 There will be an order accordingly.

The costs of the Watts proceeding for the period 24 September 2022 - 17 November 2022 at 11.00am

24 Next, the applicants seek an order that the Watts respondents pay the applicants’ costs in pursuing the Watts proceeding and the Rolton proceeding from 24 September 2022 to 17 November 2022 at 11.00am on a party and party basis, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceedings.

25 I do not understand the Watts parties to resist an order in those terms and there will be an order accordingly save that the period in question will start from 24 September 2022.

Whether the applicants should receive their costs after 11.00am on 17 November 2022 and if so, on what basis

26 There are two questions.  First, whether the applicants should receive their costs after 17 November 2022, and second, if so, on what basis.

27 As to the first question, there is no basis upon which the applicants should not receive their costs after 17 November 2022, subject to common issues and costs incurred in prosecuting the Rolton proceeding.

28 As to the second question, between 15 November 2022 and 13 April 2023, the applicants made three offers of settlement in the Watts proceeding.

29 The first offer was made to the Watts respondents as a Rules offer on 15 November 2022 under r 25.14 of the Federal Court Rules 2011 (Cth), in the amount of $500,000 plus costs to be taxed.

30 The second offer was made on 8 December 2022.  That offer was an offer made without prejudice save as to costs consistent with the principles in Calderbank v Calderbank [1975] 3 All ER 333, [1975] 3 WLR 586.

31 The Calderbank offer contained three alternative offers, each of which was capable of acceptance.

32 The first alternative offer was made jointly to both the Watts respondents and the Rolton respondents by which they pay to the applicants in both proceedings a combined amount of $500,000 (inclusive of costs).  Given the applicants were not successful in the Rolton proceeding, this offer may be put to one side.

33 The second alternative offer was made severally to the Watts respondents and the Rolton respondents and was capable of acceptance by either one of them.

34 In relation to the Watts proceeding, it provided that the Watts respondents pay to the applicants the amount of $300,000 (inclusive of costs).  The same offer was put to the Rolton respondents but may be put to one side.

35 The third alternative offer was made severally to the Watts respondents and the Rolton respondents and was capable of acceptance by either one of them.

36 In relation to the Watts proceedings, it provided that the Watts respondents submit to judgment in favour of the applicants in the sum of $250,000 plus costs to be agreed or taxed.  Once again, the offer put to the Rolton parties, in the same amount and on the same terms, may be put to one side.

37 The offers contained within the Calderbank letter were made at 7:34pm on 8 December 2022 and were open for acceptance until 5.00pm on 9 December 2022.

38 Although the offers were made at a time where the parties were preparing for a trial that was due to commence imminently, nonetheless, I consider a period of less than 24 hours within which to accept the offer as unreasonable.

39 The third offer was made as a Rules offer under FCR 25.14 on 13 April 2023.  The offer was that the Watts respondents pay the applicants the sum of $400,000 plus costs to be taxed.  A separate Rules offer on the same terms was made to the Rolton respondents.  Again, that offer may be put to one side.

40 On 7 May 2025, judgment was entered in favour of the first applicant in the sum of $2,939,618.53, inclusive of interest.  On the same day, judgment was entered in favour of the second to seventh applicants in varying amounts but totalling $2,013,111.51.

41 It is for the reasons set out above, that the first offer dated 15 November 2022 and the third offer dated 13 April 2023, both of which were made pursuant to FCR 25.14, are the offers which fall for consideration.

42 FCR 25.14 provides a procedure by which offers to resolve proceedings may be made:

25.14 Costs where offer not accepted

(1)    If an offer is made by a respondent and not accepted by an applicant, and the applicant obtains a judgment that is less favourable than the terms of the offer:

(a)    the applicant is not entitled to any costs after 11.00 am on the second business day after the offer was served; and

(b)    the respondent is entitled to an order that the applicant pay the respondent’s costs after that time on an indemnity basis.

(2)    If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:

(a)    before 11.00 am on the second business day after the offer was served—on a party and party basis; and

(b)    after the time mentioned in paragraph (a)—on an indemnity basis.

(3)    If an offer is made by an applicant and not accepted by a respondent, and the applicant obtains a judgment that is more favourable than the terms of the offer, the applicant is entitled to an order that the respondent pay the applicant’s costs:

(a)    before 11.00 am on the second business day after the offer was served—on a party and party basis; and

(b)    after the time mentioned in paragraph (a)—on an indemnity basis.

Note 1: Costs on an indemnity basis is defined in the Dictionary.

Note 2: The Court may make an order inconsistent with these rules—see rule 1.35.

43 The relevant rule is FCR 25.14(3).  It involves no question of whether a rejection of an offer was reasonable or not and the question is whether the judgment “is more favourable than the terms of the offer”.  If so, the applicant is entitled to an order for costs in accordance with the terms of FCR 25.14(3): JMC Pty Ltd v Commissioner of Taxation (Costs) [2023] FCAFC 95 at [6] (Bromwich, Thawley and Hespe JJ).

15 November 2022 offer

44 The Lenders brought a claim on a different basis to that brought by Chopsonion.

45 At the time this offer was served, Chopsonion was entitled to principal in the sum of $177,307.66 plus interest in the sum of $2,256,008.73 giving a total of $2,433,316.39.

46 Taken together, the Lenders were owed principal and interest totalling $1,328,989.06 as at 15 November 2022.

47 Apart from principal and interest, the Lenders were owed various amounts such as storage costs and legal fees which, together with interest, as at 15 November 2022 totalled $271,564.27.

48 On any view, the judgment obtained by Chopsonion alone, far less the other applicants, well exceeds $500,000.

49 On that basis, since the applicants obtained judgment that was more favourable than the terms of the offer, they are entitled to an order that the Watts respondents pay their costs:

(a) Before 11.00am on 17 November 2022 on a party and party basis; and

(b) After that time, on an indemnity basis.

50 The Watts respondents submit that the offer made on 15 November 20222 ought not be regarded as capable of attracting cost consequences under FCR 25.14(3).  That will require the Court to make an order that is inconsistent with FCR 25.14(3) utilising FCR 1.35.

51 To make an inconsistent order requires the Watts respondents to satisfy the Court that such an order should be made.  As a part of that process, the question of whether the rejection of the offer was unreasonable needs to be considered: JMC at [8]-[11].

52 The Watts respondents submit that an order inconsistent with FCR 25.14(3) should be made on the basis that the rejection of the 15 November 2022 offer was both rational and warranted in the circumstances on seven bases.

53 First, they submit the offer was made at a time when the proceedings were in a state of flux in that subpoenas were still being issued, and the statement of claim then on foot was materially deficient.  They observe that the offer was made prior to the provision to them of a second further amended statement of claim.  Consequently, they submit that the respondents were not in possession of a stable or clarified pleading against which to properly assess the asserted claims.

54 I do not accept that submission.  The pleading current at the time of the offer had, in fact, been filed on 26 September 2022, a period of some seven weeks.  Paragraph 16 of that document sets out the loss claimed by both Chopsonion and the Lenders.

55 Further, by 15 November 2022, all the evidence relied upon by the applicant had been served such that the Watts respondents knew the evidence they had to meet.

56 Second, they submit that a key difficulty at the time this offer was made was the ambiguous delineation between the claim made by Chopsonion and those made by the Lenders.  They submit that as they stood, the pleadings failed to provide a clear and intelligible breakdown of the asserted entitlements. They cite by way of example that Chopsonion claimed a sum in the order of $4.5 million in interest alone, whilst the Lenders separately advanced a claim for approximately $1.12 million in respect of a mortgage management fee.  They submit further that the pleadings did not adequately distinguish the legal or factual basis underpinning these amounts, nor their apportionment, with the consequence that it was impossible to assess the offer meaningfully.

57 Third, the Watts respondents submit they were required to evaluate their exposure and the offer’s reasonableness without a coherent articulation of the claims being made.  In that context, an undifferentiated lump sum offer in the amount of $500,000, plus legal costs to be taxed, was not capable of informed consideration.

58 I do not accept the second and third bases for the same reasons as set out above.  The Watts respondents knew the case they had to meet and had the evidence said to support that case.  They knew they were facing claims for significant sums of money and knew the basis for those claims.  The Watts respondents were represented by senior and junior counsel, as well as instructing solicitors such that they were capable of making their own assessment of the claims as against the risks in not accepting the offer and proceeding to trial.

59 Fourth, the Watts respondents submit that the offer failed to identify any allocation of risk or liability as between the separate heads of claim.  In particular, no indication was given as to how the $500,000 related to the entirety of the interest claim (referred to in submissions as the “Chopsonion” claim), which was ultimately unsuccessful in its entirety, or the mortgage management fee claim, which also failed.  Nor did the offer assist in distinguishing between the liability (if any) to Chopsonion and the separate liability (if any) to the Lenders.  They submit these issues were crucial given the different legal foundations and evidentiary considerations applicable to each claim.

60 I do not accept that submission.

61 As I have noted above, the Watts respondents were capable of making their own assessment of which claims may or may not succeed and of assessing the risks in proceeding to trial.

62 Fifth, the Watts respondents submit that there was no evidence before the Court that would have enabled an objective assessment of the quantum of the claims that would ultimately succeed.  They submit that the only appropriate temporal reference point for assessing the reasonableness of the offer is 15 November 2022, the date on which it was made.  This is also the date to which interest is to be calculated.

63 Whereas the date for considering the reasonableness of the offer is 15 November 2022, I do not accept the remaining submissions for the same reasons as set out in relation to the preceding bases.

64 Sixth, the Watts respondents submit that the offer was not objectively more favourable than the ultimate judgment.  They submit that the lack of specificity in the offer’s terms, coupled with the absence of evidentiary support, militates strongly against such a finding.  They submit further that in exercising its discretion under FCR 1.35, the Court is entitled to have regard to whether the rejection of the offer was reasonable in the context then prevailing.

65 I have already accepted that the date for considering the reasonableness of the offer is 15 November 2022, however I do not accept the remaining submissions.  Self-evidently, the offer was objectively more favourable than the judgment entered in favour of Chopsonion alone, let alone the remaining six applicants.  Whereas I accept the consideration of whether the rejection of the offer was reasonable has to be considered in the context of the circumstances then prevailing, that does not assist the Watts respondents for the reasons I have set out above.

66 Seventh, the Watts respondents submit that the quantum remained unresolved and opaque at the time the offer was made.  I do not accept that submission for the reasons I have set out above.

67 It is for these reasons that, subject to what I say below in relation to common issues, the applicants are entitled to the order for indemnity costs from 11.00am on 17 November 2022, excluding costs attributable to the prosecution of the Rolton proceedings.  There are no reserved costs.

Common Issues

68 Relying on Rasch Nominees Pty Ltd v Bartholomeus (No 3) [2013] SASC 14, the applicants submit they are entitled to recover costs against the Watts respondents which were common to both proceedings on the basis that those costs needed to be incurred for the purposes of the Watts proceedings.

69 The applicants submit that on the Rolton proceeding, the Rolton respondents should only recover one half of the common costs on the basis that both the Watts respondents and the Rolton respondents both needed to deal with common issues.

70 In Rasch, Kourakis CJ observed: at [11] – [12]

11.    When defendants who are jointly represented variously fail and succeed, the rule is that the plaintiff is liable to the successful defendant for those costs which are attributable to the work done for that defendant alone and for a proportionate share of the costs of the work performed in common for all defendants. The origin of the rule is in the Chancery practice as to costs when bills were filed against multiple defendants in order to properly constitute proceedings even though some defendants were only peripherally concerned in the substantial controversy. A solicitor acting for all of the defendants was, in the absence of an express agreement which provided otherwise, limited to recovering from each defendant the costs only for that work performed exclusively for him or her and for a proportionate share of the costs of the work done in common. That contractual presumption was, in turn, reflected in the costs orders made against a plaintiff in favour of a successful defendant. The contractual presumption did not apply to joint plaintiffs who, in the absence of a special retainer, were jointly and severally liable for all of the costs of the jointly retained solicitor.

12.    Einstein J reviewed the history of the costs rule in Currabubula & Paola Holdings Pty Ltd v State Bank of New South Wales: [2000] NSWSC 232 at [104].

There is authority for the proposition that the rule of thumb is not to be extended: Korner v H Korner & Co Ltd (supra). The premise upon which the rule of thumb operates is, as has been shown, one which applies only in the case of defendants. To apply it to plaintiffs, as was done in Keen v Towler (supra), is, to my mind, to extend the rule beyond its principled and authoritative basis and to achieve a result which is not self-evidently just. There is no logical reason why a defendant who is sued by several plaintiffs who are variously successful and unsuccessful should be in a more advantageous position qua joint costs (ie., those costs not referable to any one plaintiff but necessary for the cases of all the plaintiffs), than would be an unsuccessful defendant sued by one successful plaintiff alone. Intuitively, justice would seem to require that a defendant, found to be in the wrong, should bear all the costs which the successful plaintiff would have to incur in bringing the action and should be spared only those costs occasioned by the joining of the unsuccessful plaintiffs. To my mind, this is the correct legal position, as is stated by Mr Mark Orkin QC in Law of Costs (2 ed, Canada Law Book Inc, 1987, para 208.1) as follows:

Where several plaintiffs sue by the same solicitor, and one succeeds while the others fail, the successful plaintiff will be entitled to recover the whole of his costs from the defendant and not merely a proportion. The unsuccessful plaintiffs will be obliged to pay the defendant’s costs as occasioned by their having been joined unless the Court otherwise orders.

I respectfully agree with his Honour’s conclusions and with his criticism of the decision in Keen v Towler.6 Einstein J’s observations were approved in Howards Storage World Pty Ltd & Ors v Haviv Holdings Pty Ltd & Anor: (2010) 182 FCR 84.

71 On that basis, the applicants seek an order that the Watts respondents pay the applicants their costs in pursuing both the Watts proceeding and the Rolton proceeding from 11.00am on 17 November 2022 on an indemnity basis, but excluding costs attributable only to the prosecution of the Rolton proceeding.

72 The Rolton respondents also embrace the principles set out by Kourakis CJ in Rasch.

73 When made in circumstances where there will be orders in the Rolton proceeding, such an order is consistent with the principles identified in Rasch.

74 The result of the application of those principles is that in the Rolton proceedings (with which I deal with below) the applicants seek orders in the following general format:

(1) In respect of costs of the [Rolton] respondents, from [date] to [date] the first to sixth applicants are to pay the [Rolton] respondents the following costs on a party and party basis, including any reserved costs, to be taxed if not agreed:

(a) Their costs attributable only to the defence of this proceeding;

(b) 50% of the costs of the [Rolton] respondents in both this proceeding and the [Watts proceeding] on matters which were common to this proceeding and the [Watts proceeding], but excluding costs attributable only to the defence of the [Watts proceeding].

75 These orders vary slightly from the orders originally proposed by the applicants after taking into account concerns with the wording raised by the Rolton respondents.

Rolton proceedings

76 The respondents in the Rolton proceedings were successful in defending the action such that the starting position is that they are entitled to an order for their costs of the action.

77 Save for a security for costs point with which I deal below and the costs of common issues with which I have dealt above, the applicants in the Rolton proceeding accept that they are obliged to pay Rolton’s costs of the Rolton proceedings.

The applicants’ costs of the Rolton respondents’ application for security for costs

78 On 25 October 2022, the Court dismissed an application by the Rolton respondents for security for costs.

79 Costs were reserved on the application of the Rolton respondents to give them the opportunity to consider the reasons for the Court’s decision and to consider whether any basis existed as to why the applicants should not receive their costs of the application.

80 The applicants now seek their costs of the unsuccessful application for security for costs.  The Rolton respondents oppose the order but no basis has been put forward as to why the applicant should not receive their costs.

81 There will be an order that the applicants receive their costs of Rolton’s unsuccessful security for costs application.

Lump sum costs

82 The parties agree that any assessment of costs in both matters should be on a lump sum basis.

Orders

83 There will be orders as follows:

Orders - Watts proceedings

(1) The respondents are to pay the first applicant its costs for the period up to and including 31 May 2022 on a party and party basis, to be assessed as a lump sum if not agreed.

(2) The respondents are to pay the first applicant its costs in pursuing both this proceeding and the Rolton proceeding from 1 June 2022 to 23 September 2022 on a party and party basis, to be assessed as a lump sum if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceedings.

(3) The respondents are to pay the applicants their costs in pursuing both this proceeding and the Rolton proceeding from 24 September 2022 to 11.00am on 17 November 2022 on a party and party basis, to be assessed as a lump sum if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

(4) The respondents are to pay the applicants their costs in pursuing both this proceeding and the Rolton proceeding from 11.00am on 17 November 2022 on an indemnity basis, to be assessed on a lump sum basis if not agreed, including any reserved costs, but excluding costs attributable only to the prosecution of the Rolton proceeding.

(5) Orders 1 to 4 are subject to pre-existing costs orders made in favour of the respondents on 15 June 2021, 12 August 2021, 23 September 2022 and 11 November 2022 with such costs to be assessed as a lump sum if not agreed.

Orders - Rolton proceedings

(1) The first to sixth applicants are to pay the respondents their costs for the period up to and including 31 May 2022 on a party and party basis, to be assessed as a lump sum if not agreed.

(2) In respect of the period from 1 June 2022 to 23 September 2022, the first to sixth applicants are to pay the respondents the following costs on a party and party basis including any reserved costs, to be assessed as a lump sum if not agreed:

(a) Their costs attributable only to the defence of this proceeding; and

(b) 50% of the costs of the Rolton respondents in both this proceeding and the Watts proceeding on matters which were common to this proceeding and the Watts proceeding, but excluding costs attributable only to the defence of the Watts proceeding.

(3) In respect of the period from 24 September 2022, the applicants are to pay the respondents the following costs on a party and party basis, including any reserved costs to be assessed on a lump sum if not agreed:

(a) Their costs attributable only to the defence of this proceeding; and

(b) 50% of the costs of the Rolton respondents in both this proceeding and the Watts proceeding on matters which were common to this proceeding and the Watts proceeding, but excluding costs attributable only to the defence of the Watts proceeding.

(4) The respondents are to pay the applicants’ costs of the respondents’ application for security for costs that was dismissed on 25 October 2022, to be assessed as a lump sum if not agreed.

Associate:

Dated:    16 June 2025

SCHEDULE OF PARTIES