Federal Court of Australia

White Oak Commercial Finance Europe (Non-Levered) Ltd v Insurance Australia Ltd (IA Costs) [2026] FCA 919

ORDERS

THE COURT NOTES THAT:

A.    By Orders dated 30 March 2023, 26 July 2023 and 27 May 2025, the following eleven proceedings (together, the Proceedings) are being case managed together:

(a)    White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (NSD 1039 of 2021) (White Oak Matter);

(b)    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 106 of 2022) (Catfoss Matter);

(c)    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 110 of 2022) (NMC Matter);

(d)    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 169 of 2023) (Credit Suisse Global Matter),

(the preceding three matters together being the CS Matters);

(e)    Greensill Bank AG v Insurance Australia Limited (NSD 1216 of 2021) (EHG Matter);

(f)    Greensill Bank AG v Insurance Australia Limited (NSD 173 of 2023) (Atlantic 57 Matter);

(g)    Greensill Bank AG v Insurance Australia Limited (NSD 174 of 2023) (Bluestone Matter);

(h)    Greensill Bank AG v Insurance Australia Limited (NSD 175 of 2023) (Liberty Commodities Matter);

(i)    Greensill Bank AG v Insurance Australia Limited (NSD 177 of 2023) (SIMEC Matter);

(j)    Greensill Bank AG v Insurance Australia Limited (NSD 602 of 2023) (Liberty Delta Matter); and

(k)    Greensill Bank AG v Marsh Ltd (NSD 344 of 2025) (AFP Matter),

(the preceding seven matters together being the GBAG Matters).

B.    The parties to the Proceedings are as follows:

(a)    the Applicants:

(i)    Greensill Bank AG (in administration) (GBAG) and Dr Michael Frege (as Insolvency Administrator for Greensill Bank AG) (together, GBAG Parties);

(ii)    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund Credit Suisse (Lux) Supply Chain Finance Fund (CS Virtuoso) and Credit Suisse Nova (Lux) in respect of the sub-fund Credit Suisse Nova (Lux) Supply Chain Finance High Income Fund (CS Nova) (together, Credit Suisse); and

(iii)    White Oak Commercial Finance Europe (Non-Levered) Limited (White Oak); and

(b)    the Respondents:

(i)    Insurance Australia Limited (IAL);

(ii)    BCC Trade Credit Pty Ltd (BCC), Tokio Marine & Nichido Fire Insurance Co Ltd (TMNF) and Tokio Marine Management (Australasia) Pty Ltd (TMMA) (together, the BCC/TM Parties);

(iii)    Greg Brereton; and

(iv)    Marsh Limited and Marsh Pty Ltd (together, the Marsh Parties); and

(c)    the UBS Cross Respondents:

(i)    UBS Asset Management (Europe) S.A. (UBSAM);

(ii)    UBS Asset Management Switzerland AG (UBSAME); and

(iii)    UBS Fund Administration Services Luxembourg SA (UBSFASL); and

(d)    the Inactive Greensill Parties:

(i)    Greensill Capital (UK) Limited (in administration) (GCUK); and

(ii)    Greensill Capital Pty Limited (in liquidation) (GCPL).

THE COURT ORDERS THAT:

1.    White Oak pay the BCC/TM Parties costs of and incidental to White Oak’s interlocutory application dated 23 June 2026.

2.    The costs of the interlocutory application as between White Oak and any other relevant party (including IAL and Mr Brereton) be costs in the White Oak Matter.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    These reasons concern a question of costs in one of the eleven proceedings identified in Greensill Bank AG v Insurance Australia Ltd (Anti-Anti-Suit Injunction Application) [2025] FCA 1241 at [15]. The question of costs relates to White Oak’s interlocutory application further to amend its originating application and statement of claim. The abbreviations used in these reasons may be found in the orders to which these reasons relate.

2    The interlocutory application was heard on 3 July 2026. White Oak’s proposed amendments were opposed by the BCC/TM Parties, essentially for three reasons. First, it was said that the amendments caused White Oak to plead inconsistent matters cumulatively rather than as alternatives. Secondly, complaint was made as to the absence of particulars in relation to the cause of loss relevant to White Oak’s misrepresentation case. Thirdly, complaint was made that White Oak sought to withdraw an admission that an amount of USD41,499,961 had been received in mitigation of White Oak’s losses.

3    During the hearing on 3 July 2026, White Oak agreed to provide particulars of losses where they were missing and agreed not to delete the words which gave rise to the contention that it was withdrawing an admission. That addressed the second and third matters about which the BCC/TM Parties complained. As to the first matter raised by the BCC/TM Parties, White Oak accepted that, in certain respects, its proposed Sixth Amended Statement of Claim (6ASOC) was incoherent by reason of inconsistent pleadings. White Oak accepted that certain changes would need to be made to the proposed 6ASOC but was not in a position to formulate them immediately. It followed that the Court could not make orders finally determining White Oak’s interlocutory application. The parties were encouraged to discuss the relevant incoherence and agree the various amendments which would be needed, failing which the Court would determine any residual issues on 8 July 2026.

4    The parties reached agreement as to what amendments should be permitted and agreed that the costs thrown away by reason of those amendments should be paid by White Oak. The costs of the interlocutory application were not agreed. The BCC/TM Parties seek their costs of and incidental to White Oak’s interlocutory application. White Oak contends that the costs of its interlocutory application should be costs in the proceedings. A short timetable was set for written submissions on this topic and its determination on the papers.

5    For the reasons which follow, the appropriate order is that White Oak pay the BCC/TM Parties’ costs of White Oak’s interlocutory application.

6    Contrary to White Oak’s submission, this is not a situation to which the reasoning of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624–5 is applicable. What occurred is better seen as the BCC/TM Parties making good their complaints about the proposed 6ASOC and succeeding in their opposition to White Oak’s interlocutory application.

7    White Oak advanced other submissions why it should not be ordered to pay the BCC/TM Parties’ costs.

8    First, the BCC/TM Parties pointed to the fact that key paragraphs giving rise to incoherence in the 6ASOC were identified by the Court rather than the BCC/TM Parties. However, the principal incoherence was identified by the BCC/TM Parties. The BCC/TM Parties sought to demonstrate that incoherence by reference to different paragraphs of the proposed 6ASOC to those which concerned the Court.

9    Secondly, the BCC/TM Parties say that a number of the amendments were in identical form to those earlier made by Credit Suisse in December 2025. However, it is not to the point that White Oak copied some of Credit Suisse’s amendments. The point was that White Oak’s proposed 6ASOC contained pleadings which were in some respects incoherent and in other respects lacked particulars. It might also be noted that no reason was given for why White Oak took over six months to copy Credit Suisse’s pleadings in the respects it did, only doing so when the trial is shortly to begin.

10    Thirdly, White Oak points to the fact that certain complaints earlier advanced by the BCC/TM Parties were not pressed. However, this does not tell against the BCC/TM Parties on the question of costs. It is usual and appropriate, particularly in cases of this complexity, for complaints to be narrowed.

11    Finally, White Oak submitted that most of the revisions ultimately made to the 6ASOC, and much of the argument advanced by the BCC/TM Parties, was not the subject of correspondence prior to the interlocutory application being filed. However, the three issues the BCC/TM Parties focussed on, identified at [2] above, were addressed in earlier correspondence: Ex RB-25 at 132–5.

12    Separately to the matters just referred to, the usual (but not inflexible) starting point is that a party who seeks an indulgence should pay the opposing party’s costs of the application whether or not the application succeeds: Chahwan v Euphoric Pty Ltd [2009] NSWSC 805; 73 ACSR 252 at [43] (Brereton J); GAIN Capital UK Limited v Citigroup Inc (No 3) [2016] FCA 582 at [8] to [9], [13] to [14] (Markovic J); Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74 at [5] to [6] (Yates J). No good reason was advanced for why that usual starting position should not apply so far as it concerns the BCC/TM Parties.

13    White Oak should pay the BCC/TM Parties’ costs of and incidental to White Oak’s interlocutory application dated 23 June 2026. The costs of the interlocutory application as between White Oak and any other relevant party (including IAL and Mr Brereton, both of whom appeared at the hearing on 3 July 2026, but without advancing any submission in opposition to the orders sought by White Oak) should be costs in the White Oak Matter.

Associate:

Dated:    13 July 2026

SCHEDULE OF PARTIES