Federal Court of Australia

Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Costs) [2026] FCA 1443

ORDERS

THE COURT ORDERS THAT:

Prayer 3 of the Applicant’s Interlocutory Application dated 10 July 2026

1.    In relation to prayer 3 of the Applicant’s Interlocutory Application dated 10 July 2026, costs be costs in the cause.

Respondents’ Interlocutory Application dated 22 July 2026

2.    In relation to costs:

(a)    the Respondents pay the Applicant’s costs of the application, and any costs thrown away including costs of dealing with the draft Amended Defences served between April and July 2026, on the indemnity basis, as agreed or taxed forthwith; and

(b)    the Respondents to pay the Applicant’s costs of the further cross-examination of any witnesses including Ms Bolles on the issue of copying as alleged in paragraphs 51-53 of the FASOC on the indemnity basis.

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

REASONS FOR JUDGMENT

Revised from transcript

NEEDHAM J:

1    In my decision Hubexo Australia Pty Ltd v CoreLogic Australia Pty Ltd (Amendment of Defence and Tendency Notice) [2026] FCA 1310, I reserved the costs of those applications and sought written submissions from the parties, with the decision to be made on the papers. I said at [8] that I had inclinations as to costs as follows:

(a)    in relation to costs of the Tendency application, that costs be the applicant’s costs in the cause; and

(b)    in relation to costs of the Amendment application, that the respondents pay the applicant’s costs of the application, and any costs thrown away on the indemnity basis, as agreed or taxed forthwith.

2    In considering how to deal with the reserved questions, I adopt the helpful observations as to principles relating to the exercise of the discretion to order costs by Wheatley J in Larmar v Commissioner of Taxation (No 2) [2026] FCA 1345 at [10]-[16].

Costs of the Amendment application

3    In relation to this matter, the respondents contest only as to whether costs should be payable forthwith. They submit that the circumstances do not warrant a departure from the default position as set out in r 40.13 of the Federal Court Rules 2011 (Cth), including because the pleading issue is not a discrete issue, it comes during a complex trial which has been heard (though a series of issues have appeared which have meant that the trial has not only been compartmentalised but extended), and that because the proceedings are nearly over, the applicant will not be waiting a comparatively long period to recover its costs, noting that these proceedings commenced in 2021 after an application for preliminary discovery in 2020.

4    None of those matters is compelling as to why I should not depart from the general rule. As submitted by the applicant, the basis for the order is that the conduct of the respondents was, as appears from my decision, not reasonable and, as I noted, had the explanation not been that the admission was made in error, my decision would have been different.

5    The respondents submit that the approach of requiring costs to be payable forthwith has not been taken in other costs orders in these proceedings in relation to interlocutory applications, including one in which I described the applicant’s belated inclusion of new particulars as putting the respondents in a “most unsatisfactory” position to have to deal with those particulars. That is not to the point. The “what’s good for the gander” submission only ever worked in the Coen brothers’ movie “Intolerable Cruelty”, and possibly only because delivered by George Clooney. Here, the applicant clearly communicated its position that the relevant paragraphs of the Further Amended Statement of Claim were admitted from the point they received the respondents’ written opening submissions, and included that position in its written opening submissions in reply. As Allsop J said in White v Overland [2001] FCA 1333 at [4]:

… if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said.  Litigation is not a game…

6    While there have been a number of matters in these proceedings so far where the costs have been ordered in favour of one party or the other, the purpose of this costs order is to put the applicant in, as near as possible, a situation where they are not prejudiced by the belated realisation on the respondents’ part that there had been an error, by the cavilling with whether there had been an admission, and by the unwillingness to be forthright with the Court where candour was required.

7    While this order is not meant to be punitive, I am of the view that the costs incurred by the applicant in seeking to deal with the numerous iterations of defences, which often did not reflect the admissions contended for, should never have been incurred. I consider that an order for costs payable forthwith will have the effect of lessening the prejudice on the applicant.

8    I do agree with the respondents, however, that the costs of calling witnesses should, so far as any witness’s evidence or part of a witness’s evidence relates to the copying allegation the subject of my most recent judgment, not be part of the costs which may be taxed forthwith, as that will delay the agreement or taxation of costs and make it more likely that the process will be a lengthy or multi-stage one. Those costs will still be payable by the respondents on the indemnity basis, but not part of the costs which are payable forthwith.

Costs of the Tendency application

9    The applicant embraces my initial inclination that costs be the applicant’s costs in the cause, and relies on the fact that the respondents opposed the entirety of the tendency notice. The applicant submitted that it enjoyed a substantial degree of success.

10    The respondents contended that costs should be each party’s costs in the cause, rather than the applicant’s costs in the cause. They submitted that the applicant was not entirely successful, and made the point that it was an application that would always had to have been brought as the documents sought to be tendered to prove a tendency would not have been admissible for that purpose without the application.

11    The applicant did not succeed on the tendency application in relation to matters which were not in dispute and which were admitted on the pleadings. Those issues have been admitted at least since the commencement of the hearing in April 2026, but when the original tendency notice was issued on 12 March 2026, the respondents had not made the admissions in paragraphs 18, 19 and 33 of their opening submissions.

12    The respondents did not take any action in relation to the tendency notice for some months, and when they raised the Evidence Regulations 2018 (Cth) issue, the applicant responded promptly. The question on which the applicant did not succeed was whether it could tender documents to prove a tendency to do things against other competing companies as the respondents admitted they had done to the applicant. The answer was no.

13    Having considered both sides’ submissions, I take the view that the costs order should reflect the success of the application. The parties had reasonably equal amounts of success, and so I will make an order that the costs be costs in the cause.

Associate:

Dated:    2 October 2026

SCHEDULE OF PARTIES