Federal Court of Australia

Reiche v Neometals Ltd (No 4) [2026] FCA 144

ORDERS

THE COURT ORDERS THAT:

1.    Order 4 of the Court’s Orders made on 19 December 2025 in NSD1273/2024, by which the Registrar is to proceed to determine a fixed lump-sum amount of the costs ordered pursuant to Order 1, be stayed until the later of the determination of the appeal in either WAD91/2025 or NSD2439/2025.

2.    Order 3 of the Orders of the Court dated 19 December 2025 be extended to 4:30pm on AWST 6 February 2026.

3.    The costs of this interlocutory application be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

Introduction

1    On 19 December 2025, his Honour Justice Feutrill made Orders that the Applicant pay 60% of the Respondents’ costs of the proceedings on and from 3 November 2024 on a party/party basis to be fixed on a lump-sum basis. The Orders also provided for the parties to file and serve a costs summary or response, draft orders and submissions in accordance with the Costs Practice Note (GPN-COSTS) by each of the Respondent and the Applicant, respectively. The timetabling of those matters was to be concluded by 30 January 2026, after which the determination of the lump-sum costs was to be referred to a Registrar.

2    On 22 December 2025, the Applicant lodged an interlocutory application seeking a stay of the Orders until the determination of the substantive appeal and the costs appeal. The costs appeal at that time was yet to be filed (Stay Application).

3    Her Honour Justice Longbottom had the Stay Application listed for mention on 30 December 2025. After hearing from the parties, Longbottom J ordered that the Applicant file and serve any further submissions or affidavit material in support of the Stay Application by 16 January 2025 and the Respondent file any submissions or affidavits in response by 23 January 2025. The Stay Application was then to be determined by the duty judge in the week commencing 26 January 2026.

4    On 7 January 2026, the Applicant pressed an interim application for a stay of orders 2, 3 and 4 of the Orders of Feutrill J until the week commencing 26 January 2026. His Honour Justice Shariff dismissed that oral interim application.

5    Given the timetabling orders, the requirement for the Applicant to file and serve his response by 30 January 2026 and that this matter remained in the duty list, as the duty judge, I had the Stay Application brought on for hearing at 2.15pm on 28 January 2026.

6    For the following reasons, the Stay Application will be granted in part, such that order 4 of the Orders will be stayed. That is the order by which the Registrar is to proceed to determine the fixed lump sum costs amount.

7    However, the Applicant will be required to file and serve a costs response in accordance with GPN-COSTS. On being advised of the orders that the Court would make, the Applicant sought a short extension of time of one week, for the costs response. Quite reasonably, the Respondent did not oppose that extension of one week, and I am satisfied that it is appropriate in the circumstances to extend the time for compliance with what is order 3 of the Orders of 19 December 2025 to 6 February 2026.

Background

8    On 28 February 2025, the primary judge delivered judgment in Reiche v Neometals Limited (No 2) (2025) 174 ACSR 84; [2025] FCA 125 (Substantive Judgment) whereby the Applicant was unsuccessful in his claims for compensation and other relief under s 1317AD(1), and s 1317AE of the Corporations Act 2001 (Cth). On 19 December 2025, the primary judge delivered judgment in Reiche v Neometals Limited (Costs) [2025] FCA 1649 (Costs Judgment). It is the Orders from the Costs Judgment which are the subject of the Stay Application.

9    Each of the Substantive Judgment and the Costs Judgment are the subject of separate appeals, being the Substantive Appeal, which is WAD91 of 2025, and the Costs Appeal, which is NSD2439 of 2025, respectively. The hearing of the Substantive Appeal took place in the November 2025 Full Court sittings. Judgment in the Substantive Appeal is currently reserved. The Costs Appeal is yet to be heard.

10    Given the terms of the Stay Application, it is worth setting out the Orders in full, from the Costs Judgment. Those are:

THE COURT ORDERS THAT:

1.    The Applicant pay 60% of the Respondent’s costs of the proceeding on and from 3 November 2024 as between party and party to be fixed on a lump-sum basis.

2.    By 4.30pm (AWST) on 16 January 2026 the Respondent file and serve a costs summary, minute of proposed orders and any submissions in support in accordance with paragraphs 4.10 to 4.12, 4.15 and 4.16 of the Costs Practice Note (GPN-COSTS).

3.    By 4.30pm (AWST) on 30 January 2026 the Applicant file and serve a costs response, minute of proposed orders and any submissions in support in accordance with paragraphs 4.13 to 4.16 of GPN-COSTS.

4.    Determination of the lump-sum in which to fix the costs under paragraph 1 of these orders be referred to the Registrar.

11    The Applicant originally sought the operation and enforcement of order 1 be stayed pending final determination of the latter of the appeal against the Substantive Judgment and the Costs Judgment. Further, the Applicant originally sought the operation of orders 2, 3 and 4 from the Orders be stayed pending final determination of the latter of the appeal against the Substantive Judgment and the Costs Judgment. However, as the Respondent had already complied with order 2 of the Orders, the Applicant only pressed for the stay of orders 3 and 4 at the time of the hearing of the Stay Application.

Legal Principles - Stay

12    Section 29 of the Federal Court of Australia Act 1976 (Cth) (FCA) provides as follows:

Stay of proceedings and suspension of orders

(1)    Where an appeal to the Court from another court has been instituted:

(a)    the Court or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and

(b)    the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.

(2)    This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.

13    Further, r 36.08 of the Federal Court Rules 2011 (Cth) relevantly provides:

Stay of execution or proceedings under judgment appealed from

(1)    An appeal does not:

(a)    operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

(b)    invalidate any proceedings already taken.

(2)    However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

14    The parties were agreed that the relevant applicable principles were summarised by Markovic J in Brady v NULIS Nominees (Australia) Limited in its capacity as trustee of the MLC Super Fund (Stay Application) [2025] FCA 588 at [9] and [10], which I gratefully adopt, as follows:

[9]    In Quach v MLC Limited [2022] FCAFC 202 a Full Court of this Court (Collier, Perry and Thomas JJ) considered the appellant’s application for a stay of costs orders made by the primary judge pending the outcome of his appeal. The Full Court summarised the principles that apply to the exercise of the discretion to grant a stay by reference to the decision in National Retail Association v Fair Work Commission (No 2) [2014] FCA 664 at [11] noting, among others, the following observations made by that Court at [81]:

•    Further, the discretion of the Court in granting a stay ought not be exercised lightly, and only in circumstances where there would be so adverse and serious a consequence that interlocutory intervention should take place notwithstanding that there has not been an opportunity for full consideration of the appeal Nikolaides v Legal Services Commissioner [2005] NSWCA 91 per Bryson JA at [18]; Thomson v Young [2013] NSWCA 300 at [8]. Circumstances warranting the grant of a stay have been described as “exceptional” (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) [1986] HCA 84; (1986) 161 CLR 681 at 683; Rahme v Commonwealth Bank [1993] HCA 62; (1993) 117 ALR 618 at 620; Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82 at [24]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256).

•    To that extent the balance of convenience plays an important role in determining whether an order ought be made: Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd [2014] NSWCA 87 per Ward JA at [18].

•    The Court may be minded to refuse a stay where it is satisfied that there are Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [18]; ACES Sogutlu Holding Pty Ltd v Commonwealth Bank of Australia [2014] NSWCA 84 at [6]. Conversely, the Court may be minded to grant a stay where, on a preliminary assessment of the case, the Court is satisfied that grounds of appeal or review have merit: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Attorney-General for the State of Queensland v Fardon [2013] QCA 299 at [15].

•    The Court may be minded to grant a stay where it is satisfied that any subsequent appeal or review would be rendered nugatory should a stay be refused: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [1986] HCA 84; (1986) 161 CLR 681; Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452; National Australia Bank Limited v Norman [2009] FCAFC 13 at [43].

•    Decisions at first instance should not be treated as merely provisional. A successful party in litigation is entitled to the fruits of its judgment, and courts should not be disposed to delay the enforcement of orders. A sufficient basis must be shown to outweigh these considerations: Keane JA in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455; Attorney-General for the State of Queensland v Fardon [2013] QCA 299 at [15]; Julia Farr Services Inc v Hayes [2003] NSWCA 142 at [24].

•    The Court will consider whether a stay is warranted in the interests of justice: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694; NSW Bar Association v Stevens [2003] NSWCA 95 at [83]; ACES Sogutlu Holding Pty Ltd v Commonwealth Bank of Australia [2014] NSWCA 84 at [5].

[10]    In Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 Abraham J summarised the principles at [10]-[13]:

10    Rule 36.08 confers a broad discretion. Generally, there must be demonstrated “a reason or an appropriate case” to warrant the exercise of discretion in favour of granting a stay. It is not necessary to establish special or exceptional circumstances for the grant of a stay: Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66.

11    Two questions must be considered: first, is there an arguable point on the proposed appeal: Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (Nolten) at [24] or some “rational prospect of success” in relation to any of the grounds of appeal: Burns v AMP Finance Ltd [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: Nolten at [24], [46].

12    The party seeking the order bears the onus of demonstrating a proper basis for a stay, which must be fair to all parties: Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 (Alexander) at 695. That party must demonstrate that there is a real risk that it will suffer prejudice or damage if a stay is not granted, which will not be redressed by a successful appeal: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd, McLean Tecnic Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (Kalifair) at [18]; Flight Centre Limited v Australian Competition and Consumer Commission [2014] FCA 658 (Flight Centre) at [9(f)]. This requirement will be satisfied if a successful appeal will be rendered nugatory unless a stay is granted: Ali v Australian Competition and Consumer Commission [2020] FCA 860 at [11]; Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 (BMW) at [5]; Alexander at 695; Kalifair at [18].

13    The successful party at first instance is entitled to presume that the judgment appealed from is correct: Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66, citing Re Middle Harbour Investments Ltd (in liq) (unreported, Court of Appeal NSW, 15 December 1976); Flight Centre at [9(b)]; Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; (2015) 106 ASCR 551 (Wooldridge) at [11]; Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351 at [48], [51].

Consideration

15    The Applicant submits that there is no issue as to the first question, that is, that there is an arguable point on the proposed appeal. The Respondent accepted that position. The Substantive Appeal has been heard and is reserved. There is no objection of competency or other such application on the Costs Appeal.

16    Generally speaking, it is not appropriate to embark on a close consideration of the prospects of success in determining whether the appeal raises serious issues for determination: Lehrmann v Network 10 Pty Limited [2024] FCA 1226, Abraham J at [30]. As such, I am satisfied that each of the appeals raises reasonably arguable grounds and has some rational prospect of success.

17    It is the second question, broadly described as the balance of convenience, which was where the parties differed.

18    The Applicant submitted that the balance of convenience, also by reference to the principles enunciated in Brady, favoured the grant of the stay for six reasons. First, that the Applicant would suffer serious adverse consequences that could not be addressed on appeal. The Applicant, it is submitted, is in a position of financial hardship and would be unable to pay the lump sum costs as sought by the Respondent. Second, the Applicant submitted that the Respondent was a publicly listed company which has not identified any prejudice which would result should the stay be granted. Third, due to the Applicant's financial circumstances, there is no utility in enforcing the costs order now, in any event. Fourth, if the Applicant is made bankrupt, that it is likely to affect his ability to prosecute the Costs Appeal, and that this would be detrimental to the Applicant. Fifth, it is contrary to the efficient administration of justice and case management principles to quantify those costs now. Sixthly, and finally, the Applicant submits that his position as a whistleblower supports granting the stay.

19    The Respondent submitted that although it might be broadly described as one relating to the balance of convenience, it was one informed by the principles that were articulated in Brady, particularly at [10]. The Respondent emphasised those matters, particularly within the quoted passage from Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 (Abraham J) at [10] and [12]. This becomes important in relation to what are submitted to be the two critical issues in relation to whether it is appropriate to grant the stay as sought or as varied.

20    First, the Respondent submitted that the Applicant’s financial position had not been adequately disclosed and, in effect, should not be accepted. This was primarily on two bases. First, in relation to the position regarding the Reiche Family Trust and his possible interest in that trust. Secondly, the Applicant represents that he is impecunious, however, that that is inconsistent with the continued funding of legal representatives in the proceedings.

21    The second critical issue, the Respondent submitted was that it is the Applicant’s onus to satisfy the Court that there is a real risk that the Respondent would proceed by way of bankruptcy proceedings against the Applicant. The Respondent submits that there is no evidence to support this submission or this assertion and, in the circumstances, the Court would not be satisfied that there is such a real risk. Quite properly, however, the Respondent did accept that, if the Court was satisfied that there is a real risk of bankruptcy, then it was likely that the appeal would be rendered nugatory.

The Applicant’s financial position

22    The Applicant gives evidence that he has been unemployed since his employment with the Respondent was terminated in September 2024, and that he is receiving Centrelink special benefit payments. He gives evidence that he does not own real property and does not have significant assets or savings. The Applicant states that he has spent all of his savings on legal costs in connection with these proceedings and the appeals. In the Applicant’s affidavits, he has stated that he is incapable of paying the amount of the lump sum costs which is sought by the Respondents. The costs amount claimed by the Respondents, on a lump sum basis is $173,507.12.

23    The Respondent has put on evidence of an ASX announcement which states that certain securities were to be provided in relation to the key management personnel, being the Applicant where the name of the registered holder is Nova Elite Pty Ltd as trustee of the Reiche Family Trust. The Respondent submits that the Applicant has not given any evidence in relation to the Reiche Family Trust, and as such his evidence as to his financial position is incomplete.

24    The Applicant accepts that he has not provided evidence as to the Reiche Family Trust. However, the Applicant has put forward a statement from Centrelink, dated 18 January 2026. That document records the payments by way of special benefit that have been made to the Applicant. That document also records the income and asset details of the Applicant. It provides three bank accounts that are said to be in the Applicant's name, cash on hand, shares in Neometals Limited, and a modest amount of household and personal effects.

25    The Applicant submitted that this document did demonstrate the Applicant’s financial position, and that his statement that he was incapable of paying the lump sum costs amount as sought was not mere assertion, as is referred to (and relied upon by the Respondent) in the decision of his Honour Thawley J in Darmali v Chu [2024] FCA 1521 at [80]. There Thawley J makes the distinction between a demonstrated financial incapacity, and a mere assertion of such incapacity. Had the Applicant’s evidence merely been the statement in his affidavit then the approach of Thawley J might have been appropriate. However, in the circumstances of this case there is the document from Centrelink which records the asset details of the Applicant. The Centrelink document does support the Applicant’s position and demonstrates he does not have the financial capacity or capability of now paying the lump sum costs order as sought. It also supports the Applicant's position that he does not own real property, as he is in receipt of rent assistance.

26    In the lead up to the hearing of this application there was some suggestion that the Applicant would be required for cross-examination. However, ultimately, the Respondent did not press to cross-examine the Applicant. As such the Applicant’s evidence was not tested by way of cross-examination. The Respondent submitted that there was nothing in the evidence in relation to the Reiche Family Trust from which the Court should conclude that the Applicant’s evidence as to his financial position was complete.

27    Further, the Respondent submitted that the Applicant had not explained the inconsistent references to his address being at 62 Seville Drive, which is the same as on his Centrelink special benefit statement, dated 18 January 2026. However, elsewhere it is recorded as being at Unit 17/82 King Street. The Respondent observed that the Applicant’s address was stated in an Australian Securities Investment Commission (ASIC) search dated 19 January 2026 as being the King Street address. The Applicant submitted that the matters recorded in the ASIC search are recording historical matters, and may not be up-to-date. Further, that matters as to the Applicant's address are a distraction in the context of this application.

28    The most recent notice of address for service filed by the Applicant on 23 January 2026 records the Applicant’s address at the Seville Drive address. It does appear that at times the Applicant may have used a different address, but there is also current evidence that the address of Seville Drive does appear to be the Applicant’s current address. However, it does seem that matters of the Applicant’s address are a distraction in the context of this application.

29    The Respondent also relies on what appears to be the continued funding of legal representatives, as a matter which is contrary to the Applicant’s submitted financial position. The position as to the funding of the Applicant’s was not the subject of evidence or explanation.

30    However, the better view of the Applicant’s evidence, in light of the statement from Centrelink, is that his evidence is consistent and supported by documentary evidence. That is, the Applicant’s position is that he either has no other assets or no other assets of value because otherwise those would have been disclosed to Centrelink and recorded in the Centrelink document. I accept that submission. As such, I am satisfied that the Applicant will not be able to pay the lump sum costs order in the claimed amount, or a similar amount.

A Real Risk of Bankruptcy

31    The second aspect upon which the Applicant relied was that there was a real risk that the Respondent would proceed by way of bankruptcy should the lump sum costs order be quantified and enforcement of that costs order proceed now. The Respondent submitted that there was no direct evidence to demonstrate the likelihood of bankruptcy proceedings by the Respondent.

32    In this regard, the Respondent noted the different circumstances in the matters of Wu v Li [2014] FCA 297, where there was evidence as is recorded by Foster J, at [50], that the Respondent would vigorously pursue his efforts to bankrupt the Applicant in that case. Further, in the matter before Abraham J in Lehrmann, a bankruptcy notice had already been issued (see [41]). The Respondent submitted that Abraham J’s reasons at [68] to [72] were in circumstances where there was direct evidence of a bankruptcy notice having been issued. Further, that in the matter of Nyoni v Shire of Kellerberrin (No 7) [2016] FCA 135 at [18]-[19] (Mortimer J as the Chief Justice then was), there were current bankruptcy proceedings in the circumstances of that case, however, the bankruptcy proceedings were brought by another person. The bankruptcy proceedings had not been brought by the parties to the appeal. As such, Nyoni was not a case similar to Wu v Li where the Respondents in that case were intent on pursuing the bankruptcy in an attempt to frustrate the appeal, or to otherwise render it nugatory. The Court was not satisfied that the Respondents were intent on pursuing bankruptcy to frustrate Mr Nyoni’s appeal.

33    In the circumstances of this case, there is no direct evidence that a bankruptcy notice has already been issued in relation to the costs orders. Of course, it could not, because the costs have not yet been quantified. Further, there is no statement or other evidence by an officer of the Respondent that they (on behalf of the Respondent) are intent on pursing bankruptcy proceedings against the Applicant. However, when considering whether there is a real risk, that is whether there is an objective likelihood of bankruptcy proceedings being taken, not a mere speculation or a hypothetical possibility, it must be considered in the particular circumstances of this case. Those circumstances are that the Applicant is in receipt of Centrelink special benefits and is impecunious. I accept his evidence that he does not have the financial capability to be able to pay the lump sum costs order, either in the amount sought or a similar amount. Given an absence of property, income and bank accounts other enforcement measures would be unlikely to be of benefit to the Respondent. As such, in these circumstances, the inference is open that there is a real risk that the Respondent would proceed by way of bankruptcy against the Applicant.

34    The Respondent has not undertaken that it would not proceed by way of bankruptcy and expressly submits that it is not required to do so, as it is the Applicant’s onus to satisfy the Court of the real risk of bankruptcy proceedings. I accept that it is the Applicant’s onus to establish the real risk of bankruptcy proceedings. However, the inference is available that there is a real risk of bankruptcy proceedings in particular circumstances of this case. This is because I have accepted the financial position of the Applicant, as being impecunious, together with the lack of other enforcement measures which would be available to the Respondent to pursue or enforce the costs order once quantified.

Prejudice

35    The Applicant submitted that he would suffer prejudice should the stay not be granted. This was in the circumstances of the submitted risk of bankruptcy proceedings, and the impact of that on the appeals. Further, the Applicant submitted that there was no prejudice to the Respondent if the costs enforcement was delayed by some period of time, until the Costs Appeal was determined, given it is a publicly listed corporation. The Respondent did not contend that it would suffer prejudice, but submitted that it was not a matter of balancing any suggested prejudice by the Applicant as against the Respondent. This submission was relying on Brady at [10], from Viagogo AG at [12], that it was for the Applicant to demonstrate that there was a real risk he will suffer prejudice. It was not relevant, the Respondent submitted, whether it would suffer prejudice.

36    However, Abraham J, in Lehrmann at [70] and Markovic J in Brady, at [33], both considered that it was relevant to consider the prejudice, if any, to the other party. As such, I do not accept the submission that prejudice to the Respondent is not relevant. Of course, how much weight it is to be given in the context of the principles enunciated at [10] of Brady is another matter. The Respondent in the circumstances of this case (as accepted) would not suffer any prejudice by the stay and the delay which would ensue in relation to the recovery of the costs that have been ordered. Of course, that is on the assumption that the Applicant is unsuccessful in the appeal.

The Applicant's Responsive Material

37    The Applicant also sought a stay on having to submit his material in relation to the lump sum costs process now. The Respondent has already filed and served its material. The orders made by Feutrill J in relation to timetabling provided for the Respondent’s material on 16 January 2026, and for the Applicant to provide a response on 30 January, some two weeks later. This is in circumstances where the issue relating to costs was heard on 12 June 2025, and the Orders were made on 19 December 2025. The balance here lies in requiring both the Respondent and the Applicant, in a relatively timely way, to submit their material in relation to the quantification of costs. Timely in the sense of when the Substantive Judgment, and the Costs Judgment were delivered.

38    It is in the interests of justice that the quantification process on behalf of the parties take place now, while those matters are relatively fresh in the parties’ minds. This strikes the appropriate balance. That balance is one where if the Applicant is unsuccessful on the appeals then the reactivation of the quantification and enforcement of costs can be sought promptly, and the matter referred to the Registrar. In those circumstances, the quantification of costs would not then have to await the parties’ availability (or refreshment as to the issues on costs) and will provide some relative certainty on the quantification process. If the Applicant is ultimately successful in whole or in part on the Substantive Appeal, or the Costs Appeal, it may mean that there are some wasted costs by both the Applicant, and the Respondent, in relation to that quantification process. However, by seeking to have this part of the process undertaken now, this strikes the appropriate balance in the circumstances.

Whistleblower

39    The Applicant submitted that it was also relevant, and it should be taken into account on the Stay Application, that the Applicant was a whistleblower. This was not put in the sense of the Respondent having caused the impecuniosity of the Applicant, but that the Applicant has spent his savings on these proceedings, and that the additional context of him being a whistleblower was relevant. The Respondent submitted that it was not relevant in the particular circumstances of this case, particularly where the claims made by the Applicant were rejected by the primary judge. I do not accept the submission that the Applicant’s status as a whistleblower is relevant to the Stay Application. No particular authority was cited for such a proposition.

40    What is relevant on the Stay Application, as has been outlined above from the authorities, is whether this is an appropriate case to grant a stay. The party seeking the stay must demonstrate first, that there is an arguable point on the appeal and second that the balance of convenience favours the grant of the stay. The party seeking the stay bears the onus of demonstrating a proper basis for a stay, which is fair to all parties. Further, that party must demonstrate that there is a real risk they will suffer prejudice if the stay is not granted, which will not be redressed by a successful appeal. That would be satisfied if the appeal would be rendered nugatory unless there is a stay. In terms of these principles, including that the successful party is entitled to presume that the judgment appealed from is correct, that the Applicant was a whistleblower is not relevant.

Conclusion

41    Therefore, on the basis that:

(a)    the Applicant’s financial position is accepted, he is unable to meet the lump sum costs order as is claimed by the Respondent, or that amount or similar;

(b)    in circumstances where there are no other assets, property or income to proceed against by way of enforcement, it is not hypothetical or a matter of mere speculation that there is a real risk that the Respondent may proceed by way of bankruptcy proceedings;

(c)    if the Applicant is made bankrupt it would likely affect his prosecution of the Costs Appeal, of course the Substantive Appeal having already been argued and awaiting judgment;

(d)    the Respondent accepted that if the Applicant was made bankrupt it would effectively render his appeals nugatory;

(e)    the Costs Appeal does not appear to have been listed for the March sittings. It is unknown, and the parties did not provide any evidence of when it might be listed for hearing. It could be the August sittings, or it could be the November sittings. In those circumstances it is some time away, and that is why there is a benefit to the Applicant responding to the Respondent's costs material now, while it is relatively fresh; and

(f)    there is no demonstrable prejudice to the Respondent. And although I do not give that significant weight it is something to be taken into account, particularly in circumstances where there is prejudice or at least a real risk of prejudice to the Applicant in the circumstances.

42    Therefore, for those reasons, there will be the orders which:

(a)    Stay order 4 of the Orders made on 19 December 2025, until the later determination of the Substantive Appeal or the Costs Appeal;

(b)    Order 3 of the Orders made on 19 December 2025, will be extended to 4.30pm AWST 6 February 2026; and

(c)    Costs reserved.

Associate:    

Dated:    23 February 2026