Federal Court of Australia

Pheonix A Pty Ltd v Spring UT Pty Ltd ATF Spring Unit Trust (No 2) [2026] FCA 1311

ORDERS

THE COURT ORDERS THAT:

1.    Axes Financial Pty Ltd (ACN 638 951 836) (trading as Aequitas Litigation Funding) (Aequitas) be joined to the proceeding.

2.    Aequitas pay the respondents’ costs of the proceeding up to and including 12 June 2026, such costs to be paid on a party-and-party basis.

3.    The respondents’ interlocutory application dated 19 June 2026 (the Interlocutory Application) otherwise be dismissed.

4.    Aequitas pay one-third of the respondents’ costs of the Interlocutory Application.

5.    The respondents pay the costs of the applicants, Pheonix 85 Pty Ltd (ACN 669 628 773) and Ms Doyle of the Interlocutory Application.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    These reasons deal with an interlocutory application filed by the respondents, Spring UT Pty Ltd and Mr Rosario Pelligra (the Spring UT Parties) seeking: (a) an order that the applicants, Pheonix A Pty Ltd and Pheonix B Pty Ltd pay the costs that they were ordered to pay on 12 June 2026 on an indemnity basis; and (b) orders that certain third parties be ordered to pay the Spring UT Parties’ costs of the proceeding (such costs to be payable on an indemnity basis). The third parties against whom costs orders are sought are: Ms Stephanie Doyle; Pheonix 85 Pty Ltd (Pheonix 85); and Axes Financial Pty Ltd (trading as Aequitas Litigation Funding) (Aequitas).

2    The interlocutory application arises in the following context. On 12 June 2026, I gave judgment following the trial of the proceeding: Pheonix A Pty Ltd v Spring UT Pty Ltd ATF Spring Unit Trust [2026] FCA 728. The orders made on 12 June 2026 included that the applicants’ originating application be dismissed and that the cross-claimants’ cross-claim be dismissed. In relation to costs, para 3 of the Court’s orders provided that, subject to para 4, the applicants pay the respondents’ costs of the originating application and the cross-respondents pay the cross-applicants’ costs of the cross-claim. Paragraph 4 of the Court’s orders provided that any party seeking a different costs order could file an outline of submissions and affidavit material within a certain time. In circumstances where the Spring UT Parties seek third party costs orders, the Spring UT Parties filed and served an interlocutory application (dated 19 June 2026) rather than merely an outline of submissions.

3    These reasons should be read together with the 12 June 2026 reasons. I will adopt the abbreviations used in the 12 June 2026 reasons unless otherwise indicated.

4    The following affidavit material is before the Court for the purposes of the interlocutory application.

5    The Spring UT Parties rely on affidavits of Mr Julian Vagg, a principal of Oakley Thompson & Co (Oakley Thompson), the solicitors acting for the Spring UT Parties, dated 19 June 2026, 10 July 2026 and 11 August 2026.

6    Pheonix A, Pheonix B, Pheonix 85 and Ms Doyle (the Pheonix Parties) rely on an affidavit of Nigel Evans, an Australian legal practitioner and the Managing Director of Aptum Legal, the solicitors acting for the Pheonix Parties, dated 18 August 2026. I note that the confidential parts of that affidavit were not relied upon.

7    In addition, the Spring UT Parties sought to rely on a tender bundle comprising three documents: (a) extracts from an affidavit of Mr David Block dated 3 July 2026; (b) an unredacted version of the litigation funding agreement between Pheonix A, Pheonix B, Pheonix 85 and Aequitas (the Litigation Funding Agreement); and (c) an email chain between Pheonix A and Pheonix B or their lawyers, on the one hand, and Aequitas, on the other hand. The affidavit of Mr Block was originally filed by Aequitas, but it was subsequently withdrawn. The second and third documents were annexed to the affidavit of Mr Block when filed. The Pheonix Parties objected to the tender of the three documents, on bases including hearsay, relevance and the litigation privilege in s 119 of the Evidence Act 1995 (Cth). These objections were resolved at the hearing as follows: (a) paras 1, 5, 7 and 27 of the extract from the Block affidavit were admitted into evidence; (b) the unredacted Litigation Funding Agreement was admitted into evidence as against Aequitas but not the Pheonix Parties (but I note that a redacted version of the Litigation Funding Agreement had been provided to the Spring UT Parties in the course of the proceeding and is annexed to Mr Vagg’s affidavit of 19 June 2026); and (c) only one email in the email chain (an email from Ms Doyle sent on 27 November 2025 at 10.35 am) was admitted into evidence.

Background facts

8    Pheonix A and Pheonix B are special purpose vehicles established for the purpose of entering into the Agreements for Lease and the Leases.

9    Ms Doyle is the sole director and company secretary of Pheonix A and Pheonix B. Pheonix 85 is the sole shareholder of Pheonix A and Pheonix B.

10    Ms Doyle is the sole director, company secretary and shareholder of Pheonix 85.

11    On or about 4 June 2024, Aequitas entered into the Litigation Funding Agreement with Pheonix A, Pheonix B and Pheonix 85. Ms Doyle was a party to the Litigation Funding Agreement, guaranteeing the performance of Pheonix A, Pheonix B and Pheonix 85.

12    Under the Litigation Funding Agreement, Aequitas (which carries on business as a litigation funder) agreed to provide funding to Pheonix A and Pheonix B to enable them to conduct the proceeding. Clause 3.1 of the agreement provides in part that, in consideration of Aequitas providing funding, Pheonix A, Pheonix B and Pheonix 85 agreed to (with the capitalised expressions defined in the Litigation Funding Agreement):

(a)    pay all legal costs to Advisers pursuant to the retainer between Client and Advisers;

(b)    repay any amount or amounts advanced under this Agreement from recovery of any costs ordered or from recovery of Settlement Sum or Judgment Sum;

(c)    pay the Funding Fee from recovery of Settlement Sum or Judgment Sum; …

13    Clause 13.1 of the Litigation Funding Agreement provided:

Funder indemnifies and agrees to keep indemnified Client against all costs awarded against Client in the Litigation unless those costs are attributable to any default or neglect of Client.

14    In 2025, there was correspondence between the parties in which the Spring UT Parties sought security for costs from Pheonix A and Pheonix B. This was ultimately resolved on the basis that Pheonix A and Pheonix B would give certain undertakings. Those undertakings were recorded in paras C and D of the Notes to the orders made on 23 June 2025:

C.    The applicants, by their legal representatives, undertake to enforce the indemnity provided at clause 13.1 of the Litigation Funding Agreement between the applicants and Axes Financial Pty Ltd (trading as Aequitas Litigation Funding) dated 6 June 2024 should any adverse costs order be made against the applicants in this proceeding.

D.    The applicants, by their legal representatives, undertake to inform the respondents immediately should the Litigation Funding Agreement referred to in ‘C’ above be terminated.

15    The correspondence leading up to the giving and acceptance of those undertakings is set out in Mr Vagg’s affidavit of 10 July 2026 at paras 9-16. That correspondence included a letter from Strongman & Crouch (the solicitors then acting for Pheonix A and Pheonix B) to Oakley Thompson dated 18 June 2025 in which Strongman & Crouch stated: “We also confirm that our clients’ litigation funder [i.e. Aequitas] has been informed of the provision of this undertaking, is aware it is being provided and agrees to it being provided”. On the basis of that evidence, I find that Aequitas was aware that the undertakings were being provided and agreed to the undertakings being provided.

16    Further, on the basis of para 17 of Mr Vagg’s affidavit of 10 July 2026, I also find that, in mid-2025, the Spring UT Parties had given instructions to Oakley Thompson to make a security for costs application against Pheonix A and Pheonix B, and those instructions were withdrawn upon Pheonix A and Pheonix B agreeing to provide the undertakings recorded in the Notes to the orders made on 23 June 2025.

17    There is no evidence to suggest that the Spring UT Parties sought financial statements or other information about the financial standing of Aequitas. In the course of the hearing of the present application, senior counsel for the Spring UT Parties accepted that they did not.

18    On 27 November 2025, the Spring UT Parties made a Calderbank offer to Pheonix A and Pheonix B. A copy of the Calderbank offer is at tab 8 of “JMV-3” to Mr Vagg’s affidavit of 19 June 2026. In summary, the Spring UT Parties offered to settle the proceeding on the basis that Pheonix A and Pheonix B pay 85% of the Spring UT Parties’ costs of and incidental to the proceeding (including the cross-claim), such costs to be assessed on a party-and-party basis if not agreed. The offer was open for acceptance until 10.00 pm on 8 December 2025.

19    The offer letter contained a detailed description of why the Spring UT Parties considered Pheonix A and Pheonix B’s case to be “hopeless” and why (they contended) “any reasonable assessment of the litigation risks should lead [Pheonix A and Pheonix B] to accept the [Spring UT Parties’] offer”. Paragraph 14 of the letter stated:

14.    In short:

14.1.    The agreements on which the applicants sue were expressly conditional upon the applicants preparing and submitting adequate plans and specifications by agreed dates (the Design Conditions).

14.2.    The applicants failed to comply with those conditions. They never produced complete plans and specifications within the meaning of the Agreements, and they never satisfied the Design Conditions by the relevant deadline.

20    Further, in para 15 of the letter, the Spring UT Parties contended that Pheonix A and Pheonix B (through Ms Doyle and Mr David Walls) made a series of serious misrepresentations and non-disclosures in relation to their experience, the operation and profitability of the “Birdies” venues, their liquor licensing history and the conditions attaching to the Birdies Forest Hill licence and to Mr Walls personally.

21    Pheonix A and Pheonix B did not accept the Calderbank offer.

22    The total amount advanced by Aequitas under the Litigation Funding Agreement was $545,246.38, which included $204,375.00 for an insurance premium funded as a disbursement (see the Block affidavit, para 7).

23    Aequitas did not fund the trial, which commenced on 3 December 2025 and occupied 10 hearing days. Aequitas provided no funding for the proceeding after 18 November 2025 (see the Block affidavit, para 27).

24    On 27 November 2025 at 10.35 am, Ms Doyle sent an email to Aequitas which stated that “we paid the best part of $250k” to the lawyers acting for Pheonix A and Pheonix B. Although it is not entirely clear who the “we” is referring to, I infer that it refers to, or at least includes, Ms Doyle. On the basis of this email, I find that Ms Doyle funded part of the proceeding. The evidence does not make clear whether the funds were provided by way of a loan to Pheonix A and Pheonix B or otherwise.

25    Mr Evans gives evidence (in para 15 of his affidavit) that he is informed by Ms Doyle and believes that Pheonix A and Pheonix B have never received any notice from Aequitas asserting that the Litigation Funding Agreement has been terminated. I accept that evidence. On the present evidence, it does not appear that the Litigation Funding Agreement has been terminated.

Indemnity costs issue

26    Pheonix A and Pheonix B do not dispute that they should pay the Spring UT Parties’ costs of the proceeding (i.e. both the claim and the cross-claim) (as ordered by para 3 of the orders made on 12 June 2026). The issue to be determined is whether, as the Spring UT Parties contend, those costs should be payable on an indemnity basis (rather than on a party-and-party basis).

27    Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court the power to make costs orders, including the power to order costs on an indemnity basis. The circumstances in which an indemnity costs order may be made include where the proceedings were conducted “in wilful disregard of known facts or clearly established law” (Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225 (Colgate-Palmolive) at 233); where “an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397 at 401); and where there has otherwise been unreasonable conduct by “undue prolongation of a case by groundless contentions” (Colgate-Palmolive at 233).

28    The unreasonable rejection of a Calderbank offer may justify an award of indemnity costs: see Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 at [6]-[8]; Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd (No 2) [2013] FCA 807 at [10]; Dobrinski v Shepard (Trustee); in the matter of Slade (No 3) [2020] FCA 696 at [9]. One of the matters to be considered, in determining whether a refusal was unreasonable, is the extent of the compromise offered.

29    It is convenient to start the consideration of the indemnity costs issue with the Spring UT Parties’ Calderbank offer. The offer was to accept 85% of the Spring UT Parties’ party-and-party costs. This was not even a “walkaway” offer. It would have involved a payment by Pheonix A and Pheonix B to the Spring UT Parties. I am not satisfied that the offer contained a sufficient element of compromise to conclude that it was unreasonable for Pheonix A and Pheonix B to have rejected the offer. Accordingly, the rejection of the Calderbank offer does not provide a basis to order indemnity costs. I form this view despite the fact that the offer letter contained a detailed description of the weaknesses in Pheonix A and Pheonix B’s case, which weaknesses align closely with the bases upon which their claims ultimately failed.

30    I turn now to the other bases upon which the Spring UT Parties submitted that costs should be awarded on an indemnity basis. These are set out in detail in their outline of submissions at paras 8-33.

31    The Spring UT Parties submit that it was unreasonable for Pheonix A and Pheonix B to bring the proceeding (seeking damages of $30 million) in circumstances where they had misled and deceived Spring UT into entering into the agreements in the first place. The Spring UT Parties submit that it should have been obvious to Pheonix A and Pheonix B that their claims were hopeless and bound to fail by reason of their own conduct. The Spring UT Parties submit that Pheonix A and Pheonix B’s misrepresentations were “not innocent or unintentional”; rather they were made “deliberately and intentionally” as part of their “pitch” to the Spring UT Parties.

32    The Spring UT Parties also rely on Pheonix A and Pheonix B’s conduct during the course of the proceeding in failing to provide (in response to requests made by the Spring UT Parties) documents relating to the Birdies Forest Hill licence conditions. The Spring UT Parties go further and submit that Pheonix A and Pheonix B “actively obstruct[ed]” the production of critical documents on this matter.

33    The Spring UT Parties submit that Pheonix A and Pheonix B had clear notice of the Spring UT Parties’ defence from the outset, but chose to deny that Pheonix A and Pheonix B had misled the Spring UT Parties and pressed their “speculative” claim for “exorbitant and extravagant” damages of $30 million.

34    The Spring UT Parties submit that the claim against Mr Pelligra was “particularly unmeritorious” and “doomed to fail”.

35    The Spring UT Parties also submit that Pheonix A and Pheonix B adopted a “cavalier approach” to the conduct and prosecution of the proceeding.

36    In my view, the Spring UT Parties have not established that it is appropriate to order costs on an indemnity basis. While it is true that I found that Pheonix A and Pheonix B engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, this was after a contested trial in which each side gave oral evidence and the findings depended in part on my assessment of that evidence. Further, while I concluded that the condition in clause 2.1 of the Agreements for Lease was not satisfied as at 21 February 2024, and that Spring UT validly terminated the Agreements for Lease and the Leases on 21 February 2024, this was after a contested trial at which cogent arguments were presented by Pheonix A and Pheonix B. Thus, I do not accept the proposition that, assessed in advance of the trial, Pheonix A and Pheonix B’s case was hopeless or bound to fail. The same applies to the claim against Mr Pelligra, the success or failure of which was bound up with the other claims.

37    Insofar as the Spring UT Parties made submissions about Pheonix A and Pheonix B’s conduct relating to the production of documents, it is not feasible on the present application to fully investigate whether there was wrongdoing by Pheonix A and Pheonix B in relation to the production of documents. The affidavit evidence filed by the Spring UT Parties is not sufficient to enable me to make findings about this. Ultimately, documents relating to the Birdies Forest Hill licence conditions were obtained by the Spring UT Parties and their costs of obtaining those documents will be covered (either by costs orders made at the time or by the costs order made at the conclusion of the substantive proceedings).

38    Insofar as the Spring UT Parties submit that Pheonix A and Pheonix B adopted a “cavalier approach” to the conduct and prosecution of the proceeding, I accept that the circumstances in which the original trial date needed to be vacated were quite unsatisfactory. However, this was dealt with in costs orders at the time. I am not satisfied that Pheonix A and Pheonix B’s conduct in relation to other interlocutory steps warrants an indemnity costs order. I note also that Pheonix A and Pheonix B’s solicitors and counsel conducted the trial in an efficient and appropriate manner.

39    For those reasons, I decline to make an order that the costs be paid on an indemnity basis.

Third party costs orders

40    The Spring UT Parties seek third party costs orders against: (a) Ms Doyle; (b) Pheonix 85; and (c) Aequitas.

41    The principles relating to the making of third party costs orders were discussed by the High Court of Australia in Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178. In that case, Mason CJ and Deane J held that the Court has jurisdiction to make an order for costs against a non-party. Their Honours recognised a general category of case in which such an order may be made (at 192-193):

For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.

42    The principles relating to third party costs orders were discussed by the Full Court of this Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; 200 FCR 154 at [71]-[91]. The Full Court stated at [83]:

In FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, Basten JA (with whom Beazley JA agreed) said at [210]:

[210]    … What is significant from a survey of the cases in which orders have been made against non-parties is that they tend to satisfy at least some, if not a majority, of the following criteria:

(a)    the unsuccessful party to the proceedings was the moving party and not the defendant;

(b)    the source of funds for the litigation was the non-party or its principal;

(c)    the conduct of the litigation was unreasonable or improper;

(d)    the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest; and

(e)    the unsuccessful party was insolvent or could otherwise be described as a person of straw.

43    The Full Court also stated at [85]:

Costs have been awarded against a director of an impecunious applicant company on the basis that the director was the “real party” to the litigation: Oz B and S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128; Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558; Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685; [1997] FCA 760.

44    Recently, the appliable principles were considered by the Full Court of this Court in Court House Capital Pty Ltd v RP Data Pty Ltd [2023] FCAFC 192. In that case, the Full Court set out (at [12]) the primary judge’s distillation of the applicable principles and stated (at [13]) that it discerned no error in that statement of principles. See also Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17 at [35]-[42].

45    I will commence with the application for a third party costs order against Ms Doyle. The Spring UT Parties’ submissions are set out in paras 38-41 of their outline of submissions. In summary, the Spring UT Parties submit that Pheonix A and Pheonix B are (and were) impecunious, and that Ms Doyle established and operated these companies “for her own benefit”. The Spring UT Parties submit that Ms Doyle was the moving party in the proceeding and instructed Pheonix A and Pheonix B’s solicitors and counsel throughout the proceeding.

46    In oral submissions, the Spring UT Parties placed emphasis on a passage of transcript from the hearing of the proceeding (T115-116). In that passage, Ms Doyle was asked whether it was correct that the litigation was being funded by a litigation funder. She said that was correct. In response to a question, she named the funder (Aequitas). In response to a question, she provided the percentage that the funder stood to get out of the proceeding (27.5%). She was asked questions about who she dealt with at the funder. The Court then queried senior counsel for the Spring UT Parties as to the relevance of those questions. In response, senior counsel said that “[this] is going towards the impecuniosity of Pheonix A and Pheonix B”. Senior counsel for the Spring UT Parties then moved on to other questions. In oral submissions at the hearing of the present application, the Spring UT Parties submitted that Ms Doyle had failed to disclose that Aequitas had stopped funding the litigation; and that, had that been disclosed, the Spring UT Parties would have immediately made an application for security for costs against Pheonix A and Pheonix B (rather than relying on the undertakings recorded in the Notes to the Court’s orders of 23 June 2025). The Spring UT Parties submitted that this was a further reason to make a third party costs order against Ms Doyle.

47    The Spring UT Parties also rely on the fact that Ms Doyle funded part of the litigation.

48    I am not satisfied that it is appropriate to make a third party costs order against Ms Doyle. I accept that Pheonix A and Pheonix B are impecunious. There is no real issue about this. I accept that Ms Doyle directed the conduct of the litigation. However, this is to be expected in circumstances where she was the director of Pheonix A and Pheonix B. While she stood to gain from the litigation if it led to an increase in the value of the shares in Pheonix A and Pheonix B (which she held indirectly via Pheonix 85), I do not consider this sufficient to conclude that she had an interest in the outcome of the proceeding in the relevant sense. Her interest was merely indirect, by virtue of being a shareholder. In light of my conclusions, above, in relation to the indemnity costs issue, I do not consider the conduct of the litigation generally to have been unreasonable or improper. Further, although I have found that Ms Doyle provided part of the funds for the litigation, I am not satisfied that this factor (whether taken alone or together with other factors) is sufficient to make it appropriate to make a third party costs order against her. If the money was advanced as a loan to the company, her interest would merely be in repayment of the loan; any such loan would not give her an interest in the subject matter of the litigation.

49    Insofar as the Spring UT Parties rely on the passage from the transcript of the hearing at T115-116, I am not satisfied that Ms Doyle’s answers were incorrect or misleading. The questions were quite specific and did not go to whether Aequitas was continuing to fund the proceeding. I note also that the context of the questions was to establish the impecuniosity of Pheonix A and Pheonix B, not to investigate the current status of the relationship with the funder. I am therefore not satisfied that Ms Doyle’s answers to these questions (or the fact that she did not disclose that Aequitas had stopped funding the litigation) provides a basis to make a third party costs order against her.

50    I turn now to the application for a third party costs order against Pheonix 85. The Spring UT Parties rely on the fact that Pheonix 85 was the parent company of Pheonix A and Pheonix B, that Pheonix 85 was a party to the Litigation Funding Agreement, and that Pheonix 85 was a party to certain other agreements that were the subject of evidence at trial.

51    In my view, there is no sufficient basis to make a third party costs order against Pheonix 85. It is not shown, for example, that Pheonix 85 directed the conduct of the litigation or provided funds for the litigation. Further, Pheonix 85’s interest in the subject matter of the litigation was as a shareholder; it is not shown that it had any other interest.

52    I now consider the application for a third party costs order against Aequitas. The Spring UT Parties seek such an order on the basis that: Aequitas provided substantial funding to Pheonix A and Pheonix B to conduct the proceeding; Aequitas stood to gain from a successful outcome of the proceeding (as it was entitled to be repaid the amounts it had advanced and it was entitled to be paid the “Funding Fee” (as defined) from any settlement sum or judgment sum); Aequitas had involvement in the conduct of the proceeding (or, at least, the right to be involved in the conduct of the proceeding); and Aequitas provided an indemnity to Pheonix A and Pheonix B in respect of adverse costs orders (see clause 13.1 of the Litigation Funding Agreement, set out above). Further, the Spring UT Parties placed emphasis on the fact that Aequitas was aware of the undertakings provided by Pheonix A and Pheonix B (as recorded in the Notes to the Court’s orders dated 23 June 2025) and agreed to those undertakings being provided.

53    Aequitas provided revised costs submissions (dated 28 July 2026) and made brief oral submissions which reflected its written submissions. In summary, Aequitas submits that the undertakings given by Pheonix A and Pheonix B on 23 June 2025 should be left to operate and that, in light of those undertakings, it is not appropriate to make a third party costs order against Aequitas.

54    In my view, it is appropriate to make a third party costs order against Aequitas. Aequitas provided substantial funding to Pheonix A and Pheonix B to conduct the litigation as part of a commercial arrangement, and Aequitas stood to gain if Pheonix A and Pheonix B were successful in the litigation. Aequitas therefore had an interest in the subject matter of the litigation. Further, Aequitas had the right to be involved in some aspects of the conduct of the proceeding (eg the selection of lawyers).

55    I do not accept Aequitas’s submission that the undertakings should simply be left to operate. This could lead to a protracted process in which issues could arise, for example, as to whether the terms of clause 13.1 are satisfied. In light of the matters discussed above, I do not consider that the costs payable by Aequitas to the Spring UT Parties should be limited by the terms of clause 13.1.

56    For these reasons, I consider it appropriate for there to be a third party costs order against Aequitas. Consistently with the costs order against Pheonix A and Pheonix B, these costs should be on a party-and-party basis (rather than on an indemnity basis).

Associate:

Dated:    4 September 2026

SCHEDULE OF PARTIES