Federal Court of Australia

Quach v Trustee for the DME Max Trust [2026] FCA 1580

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended statement of claim lodged on 25 September 2026 be accepted for filing.

2.    This proceeding be transferred to the Supreme Court of Queensland pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

3.    The applicant pay the respondent’s costs of and incidental to the interlocutory application (including the costs of and incidental to the case management hearing held on 17 June 2026) on an indemnity basis.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    Before the Court is an interlocutory application by the respondent in the substantive proceeding, DME Max Pty Ltd, for an order pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) to dismiss or permanently stay the substantive proceeding or, alternatively, that the proceeding be transferred to the Supreme Court of Queensland pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

2    The substantive proceeding was instituted by the applicant, Dr Michael Van Thanh Quach, by originating application and statement of claim. The originating application seeks an order that DME Max issue Dr Quach tax invoices for the sale of two properties in Wavell Heights in Queensland (the properties). The claim is made pursuant to s 29-70(2) of the A New Tax System (Goods and Services) Tax Act 1999 (Cth). Dr Quach claims that DME Max has a statutory duty under that section to issue tax invoices. He also seeks orders for compensatory damages, interest and costs.

3    For the reasons that follow, an order should be made for the proceeding to be transferred to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act.

background

4    The background circumstances are taken from the affidavits relied on by Dr Quach affirmed, respectively, on 2 March 2026, 23 July 2026 and 31 August 2026, and the affidavit relied on by DME Max sworn by Nakita Louise Brown, solicitor for DME Max, on 4 June 2026. Unless otherwise indicated, I did not understand the following basic facts to be in dispute.

5    Dr Quach is the sole director and shareholder of QE Family Pty Ltd which, on 25 September 2025, entered into contracts for sale and purchase of the properties. Deposits were paid on 11 October 2025 and held by Place P3E Pty Ltd ATF Place P3E Unit Trust as deposit holder under the terms of the contracts. The settlement date for each contract was fixed at 90 days from the date of the contracts.

6    On 3 October 2025, QE Family’s solicitor emailed the solicitors for DME Max with the following question:

Will your client be providing Tax invoices at settlement?

7    On 7 October 2025, QE Family’s solicitor emailed the solicitors for DME Max requesting that the contracts be amended (a) to mark the “YES” box on each contract in response to the question “Is the Buyer registered for GST and acquiring the Property for a creditable purpose?”; and (b) to extend the settlement date to 30 January 2026, with time to remain of the essence. By reply letter dated 9 October 2025, DME Max’s solicitors proposed two alternative options. Under Option 2, and subject to certain conditions being satisfied, DME Max was agreeable to an extension until 25 January 2026 (with time to remain of the essence), and for the “YES” box to be marked as requested. Option 1 did not involve an extension to the settlement date. Dr Quach deposes that his solicitor agreed to Option 2 in respect of each property, and it appears to be common ground that the date for settlement was extended. However, there is some uncertainty in the evidence as to whether it was ultimately extended to 25 January 2026 or 27 January 2026.

8    Regardless, settlement did not occur on either date or any time thereafter. On 28 January 2026, Dr Quach, as Director of QE Family, sent a letter to Ross Armstrong of Place. The letter was marked “Letter of Demand” and claimed the deposits for the properties, indicating that (a) his claim put both deposits in dispute under s 26 of the Agents Financial Administration Act 2014 (Qld); and (b) the funds were not to be dispersed to the sellers.

9    On 5 February 2026, solicitors for DME Max wrote to QE Family, marked to Dr Quach’s attention, giving notice of DME Max’s election to terminate the contracts because of QE Family’s failure to pay the balance of the purchase price on settlement of the properties and for failure to complete settlement on the settlement date, which DME Max described as essential terms.

10    On 18 March 2026, QE Family instituted proceedings in the Supreme Court seeking orders that DME Max complete the contracts, for compensatory damages, and for costs and interest. The statement of claim in the Supreme Court pleads that:

(1)    QE Family purchased the two properties in question on 25 September 2025;

(2)    QE Family is registered for GST and “acquired both properties for a ‘creditable purpose’”;

(3)    QE Family’s solicitor requested invoices on 3 October 2025;

(4)    On 9 October 2025, in written correspondence relating to both properties, DME Max offered (as Option 2) to tick “YES” to “Is the Buyer registered for GST and acquiring the Property for a creditable purpose”;

(5)    QE Family’s solicitor confirmed that QE Family agreed to Option 2 for both properties;

(6)    DME Max has a contractual obligation to issue an invoice pursuant to cl 10.8 of each contract;

(7)    The settlement date was 25 January 2026;

(8)    DME Max has not issued invoices to QE Family for the sale of the two properties; and

(9)    DME Max breached the contracts for sale of both properties.

11    On 21 April 2026, DME Max filed its defence and counterclaim disputing QE Family’s claims and seeking declarations that it validly terminated the contracts and is beneficially entitled to the deposits. Further, or in the alternative, it seeks a liquidated sum in the amount of the combined deposits, or damages for breach of contract. Orders for interest and costs are also sought, with costs sought on an indemnity basis.

12    The deposits have been paid into the Supreme Court.

13    The substantive application in this Court was accepted for filing on 26 March 2026. As indicated, it seeks an order that DME Max issue a tax invoice in relation to the two properties. The pleaded section appears to be s 29-70(2) of the Goods and Services Tax Act which provides:

The supplier of a *taxable supply must, within 28 days after the *recipient of the supply requests it, give to the recipient a *tax invoice for the supply, unless it is a *recipient created tax invoice.

[The asterisk designates defined terms.]

14    In addition to that relief and the orders for compensatory relief, interest and costs, Dr Quach also sought an injunction preventing DME Max from selling the properties. However, Ms Brown deposes that the properties have been sold to third parties; one property on 26 March 2026 and the other property on 21 April 2026. That part of the claim therefore falls away and was not addressed during the hearing of the interlocutory application.

15    On the morning of the hearing of the interlocutory application, Dr Quach sought to file an amended statement of claim. With the exception of the pleaded relief, the amended statement of claim sought to replace the original statement of claim with more detailed pleadings. It is a fair characterisation to say that the amended statement of claim sought to do two things. The first was to plead an agency relationship between Dr Quach and QE Family. The evident purpose was to avoid DME Max’s submissions on the interlocutory application that Dr Quach lacked standing to bring the proceeding and, for that reason, it should be dismissed or permanently stayed. I will return to this matter below.

16    The second was to plead further facts about the contracts, the deposit and consideration, and the claimed request for tax invoices. Alongside these pleaded facts were legal submissions, including in relation to the operation of s 29-70(2) of the Goods and Services Tax Act.

17    While Dr Quach is permitted by r 16.51 to amend the pleadings once, without leave of the Court, at any time before the pleadings close, the proposed amendment on the morning of the hearing was inconvenient. The hearing was adjourned to permit DME Max the opportunity to review the amended statement of claim in order to consider its position on whether the interlocutory application could proceed. Upon resumption, DME Max indicated that it was prepared to proceed, although it submitted that the pleaded agency relationship was not supported by any evidence. I will return to this matter below.

Issues

18    Two issues arise for determination on the interlocutory application. First, whether, pursuant to r 26.01 of the Rules, the proceeding should be dismissed or permanently stayed. Secondly, whether the proceeding should be transferred to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act.

Dismissal

19    In written submissions, DME Max contended that summary judgment should be given under r 26.01(1)(a) because Dr Quach has no reasonable prospects of success or under r 26.01(1)(c) because no reasonable cause of action is disclosed in the statement of claim. There were essentially three bases for these submissions. First, Dr Quach was not a party to the contracts. Consequently, the pleadings do not reveal any basis on which Dr Quach has a cause of action. Furthermore, Dr Quach lacks any entitlement that might arise under s 29-70(2) of the Goods and Services Tax Act to a tax invoice.

20    I do not accept this as a basis for ordering summary judgment. As I raised with counsel for DME Max at the hearing, r 9.07 of the Rules provides that “[a] proceeding will not be defeated only because: (a) a party has been improperly or unnecessarily joined as a party; or (b) a person who should have been joined as a proper or necessary party has not been joined”. In my view, the claimed deficiency can be cured by appropriate orders joining or substituting QE Family as the applicant. At the hearing, Dr Quach indicated that he would be prepared for such an order to be made if it were necessary but, ultimately, I did not understand him to make such an application. Because of the way in which I have resolved the interlocutory application, it is not necessary for me to make such an order. It will be a matter for the Supreme Court to determine the question of Dr Quach’s standing to bring the proceeding on the evidence before it and whether a joinder or substitution order should be made.

21    Secondly, DME Max made submissions going to the substance of Dr Quach’s claim, including (a) that there was no “relevant” supply because the contracts were not completed and, consequently, there was no requirement to issue invoices under s 29-70 of the Goods and Services Tax Act; and (b) that the evidence established that the contracts are incapable of completion because the properties in question have been sold to third parties.

22    However, at the hearing, DME Max’s position appeared to be that the Court was not being asked on the interlocutory application to determine the matters going to the contractual position of the parties, which are matters to be determined by the Supreme Court, or whether the provisions of the Goods and Services Tax Act were enlivened. The consequence of those concessions, in my view properly made in light of the pending Supreme Court proceedings, is that summary dismissal is not an appropriate order.

23    Thirdly, a further submission that neither the statement of claim, nor the evidence, revealed a prima facie basis for the relief sought appeared merely to be a reframing of the other claims and need not be considered further.

Permanent stay or dismissal for duplicative proceedings

24    DME Max alternatively sought an order under r 26.01(1)(b) or 26.01(1)(d) of the Rules for the dismissal or stay of the proceeding on the basis that the Court is an inappropriate forum for the determination of the dispute between the parties and, consequently, the proceeding is “frivolous or vexatious” or an “abuse of process”. While, in principle, the forum non-conveniens principle might be capable of application to a proceeding instituted in this Court when a proceeding raising related issues is already on foot in a State Supreme Court, the legislature has made it clear that the appropriate response to such a circumstance is to consider whether the proceeding should be transferred to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act.

25    Accordingly, I do not consider it appropriate to permanently stay or dismiss the proceeding on forum non-conveniens grounds where a transfer order is sought and can be made under s 5(4) of the Cross-vesting Act.

Transfer of proceedings

26    Subsection 5(4) of the Cross-vesting Act relevantly provides:

(4) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court … (in this subsection referred to as the first court); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State … and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act …; and

(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State …, apart from this Act and any law of a State … relating to cross-vesting of jurisdiction; and

(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State … referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act …; and

(D) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State …;

the first court shall transfer the relevant proceeding to that Supreme Court.

27    It is convenient to begin with Dr Quach’s submissions opposing the transfer application before turning to the relevant principles and DME Max’s submissions. Dr Quach contended that:

(1)    questions arising from the Goods and Services Tax Act are matters that should be determined by the Federal Court, and the Court “is statute barred” from transferring the proceeding to the Supreme Court; relying in support on s 79(1) of the Judiciary Act 1903 (Cth) and a statement by Mason CJ in Annetts v McCann (1990) 170 CLR 596 at 598;

(2)    DME Max is seeking impermissibly to consolidate the proceeding in this Court with the proceeding in the Supreme Court; and

(3)    there is a difference between the basis of the relief claimed in the Supreme Court (being a breach of contract) and the relief claimed in this Court (an order under a Commonwealth Act).

28    The first two submissions are misconceived. Section 79(1) of the Judiciary Act operates where a court is exercising federal jurisdiction to pick up the text of a State law governing the exercise of State jurisdiction and apply that text as a Commonwealth law to govern the exercise of federal jurisdiction: see Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 at [63] (Bell, Gageler, Keane, Nettle and Gordon JJ). It does not have the operation for which Dr Quach contended. When I made this point to Dr Quach during the hearing, he was unable to point to any other provision that sought to make jurisdiction to determine a matter under s 29-70 of the Goods and Services Tax Act exclusive to the Federal Court. In the absence of such a provision, State Supreme Courts have jurisdiction under s 39(2) of the Judiciary Act to hear and determine matters arising under the Goods and Services Tax Act.

29    Further, the passage from the judgment of Mason CJ in Annetts is directed to the general requirements of procedural fairness. Dr Quach was given an opportunity to respond to the interlocutory application. Beyond that application, it is unclear what further relevance those observations have in this case.

30    As to the contention of impermissible consolidation, it is evident from the text of s 5(4) of the Cross-vesting Act that an occasion for transfer arises where a Federal Court proceeding “arises out of, or is related to, another proceeding pending in the Supreme Court of a State … and it is more appropriate that the relevant proceeding be determined by that Supreme Court”: s 5(4)(b)(i). Thus, the coexistence of proceedings in this Court and a State Supreme Court relating to the same underlying dispute, and the appropriateness of the proceeding in this Court being determined by the Supreme Court, is a very reason enlivening the exercise of the transfer power. Whether the Supreme Court decides to take certain procedural steps following the transfer, for the purpose of efficiently resolving the transferred proceeding, is a matter for that Court. There is nothing inappropriate about DME Max seeking to transfer this proceeding with the intention of seeking the proceeding to be case managed, heard and determined alongside the Supreme Court proceeding after transfer.

31    In support of his argument directed to the impermissibility of using s 5(4) for consolidation, Dr Quach referred to the decision of Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; 236 CLR 120. The argument seemed to draw from the reference in that case to “jurisdictional facts” (at [35]), and appeared to be deployed in support of the argument that DME Max had to satisfy the Court of the jurisdictional facts required for transfer, and that consolidation was not such a jurisdictional fact. To the extent that the argument is that consolidation is not a circumstance enlivening the transfer power, I have answered that submission in the previous paragraph.

32    That there might be a difference between the character of the cause of action in this Court and the character of the cause of action in the Supreme Court does not address the transfer conditions presented by s 5(4) of the Cross-vesting Act. I will return to those conditions below.

33    Thus, none of the submissions by Dr Quach would present an obstacle to a transfer order if DME Max were able to satisfy the Court that an order should be made under s 5(4) of the Cross-vesting Act.

34    It is sufficient for DME Max to establish that the transfer of the proceeding enlivens any of the conditions in s 5(4)(b)(i), (ii) or (iii). As to what is meant by “the interests of justice” in s 5(4)(b)(iii), Cheeseman J in Roths v Sergienko [2026] FCA 1360 recently said at [18] and [20]:

… Under the Cross-vesting Act, the Court is required to transfer the proceeding if it appears that it is in the interests of justice that the proceeding be determined by another court. The inquiry is directed to identifying the more appropriate forum, without any presumption in favour of the plaintiff’s choice or any requirement that the transferor court be shown to be a clearly inappropriate forum. If the interests of justice dictate that the other court is the more appropriate forum, transfer is mandatory: BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 at [14]-[15], [25] (Gleeson CJ, McHugh and Heydon JJ), [62]-[63], [69]-[72], [77] (Gummow J). …

… The “interests of justice” is an expression to be interpreted broadly. The task is to identify the “natural forum”: Schultz at [15], [18]. Relevant considerations may include the relationship between this proceeding and any proceeding pending in the proposed transferee court; the respective stages of those proceedings; the extent to which the parties and issues overlap; the risk of duplication or inconsistent findings; the places where the parties reside or carry on business; the location and availability of witnesses and documents; the law governing the relevant transactions; convenience, expense and expedition; any specialist experience or procedural facilities that may promote the efficient and economical resolution of the dispute; and the potential for unnecessary demands upon judicial, public, and private resources. The relevant connecting factors are potentially numerous, and their significance depends upon the circumstances of the case. The interests of justice are not confined to the interests of either party and may include broader considerations concerning the administration of justice and access to justice: Schultz at [15]-[21], [25]-[28]; Cmr of Taxation v Residence Riverside Proprietary Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 at [17] (McKerracher J).

35    DME Max’s submissions in support of the transfer application were as follows:

(1)    The dispute concerns properties located in Queensland; the registered offices of QE Family and DME Max are also in Queensland; the contracts were entered into in Queensland and Dr Quach records his address as being in New South Wales. In short, there does not appear to be any connection with the Australian Capital Territory.

(2)    The disputed deposits have been paid into the Supreme Court in Queensland and an order of the Supreme Court is likely needed to dispose of the dispute over the deposits.

(3)    The two proceedings concern the same or substantially the same issues of fact and law. If the proceeding in this Court is not transferred to the Supreme Court, there is a risk of inconsistent findings of fact, and unnecessary additional cost for the parties to litigate in two courts.

(4)    The proceeding in the Supreme Court has all necessary parties joined, it has advanced to a stage where pleadings have closed (or substantially closed), and the Supreme Court is capable of quelling the entire controversy between the parties. By contrast, the parties have no identifiable connection with the Australian Capital Territory.

36    I preface my analysis with two introductory observations. First, some of DME Max’s submissions are more relevant to a transfer application from one State Supreme Court to another. This Court has national jurisdiction. In circumstances where the transfer is sought from this Court to a Supreme Court, I am not persuaded that it is correct to say that a transfer should be made because there is no connection to the Australian Capital Territory, or that the properties are located in Queensland, the contracts were entered into in Queensland, the deposits were paid into a trust account in Queensland, or that the parties to the contracts have their registered offices in Queensland.

37    Secondly, the proceeding in this Court is not concerned with the disputed deposits. Thus, the fact that the deposits have been paid into the Supreme Court bears on the transfer application only to the extent that the dispute before this Court forms part of the underlying controversy between the parties, most of which is the subject of the Supreme Court proceeding.

38    For the following reasons, I am satisfied that the condition in s 5(4)(b)(i) has been established. If I am wrong in reaching that conclusion, in my view it is otherwise in the interests of justice to make the order under s 5(4)(b)(iii).

39    As for s 5(4)(b)(i), the proceeding in this Court “is related to” the proceeding pending in the Supreme Court. There seems to be little doubt that the claim in this proceeding under s 29-70 of the Goods and Services Tax Act arises from the same substratum of facts that give rise to the Supreme Court claims. The claim for an invoice under s 29-79(2) relates to the sale of the same properties that have given rise to the Supreme Court proceeding.

40    Further, the Supreme Court will consider the same or substantially the same questions that will arise in this Court. The claim in this Court will present the question of whether there was a taxable supply under ss 9-5 and 9-10(2)(e) of the Goods and Services Tax Act by the entry into the contracts or some other act relating to the contracts. As indicated earlier, the Supreme Court pleadings put in issue the obligation under cl 10.8 to provide a tax invoice. That clause provides:

10.8 Tax Invoice

Where GST is payable on the Supply of the Property, the Seller must give to the Buyer a Tax Invoice at the Settlement Date or on any later date on which the Buyer is required to pay GST under clause 10.5 or 10.6.

41    “GST” is defined in cl 1.1 to mean “the goods and services tax under the GST Act”. “GST Act” is also defined in cl 1.1 to mean “A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes other GST related legislation”. Subclause 10.1(1) also states that “[w]ords and phrases defined in the GST Act have the same meaning in this contract unless the context indicates otherwise”. Thus, when determining whether cl 10.8 is applicable and, if so, whether DME Max has breached it, the Supreme Court will be required to consider whether “GST is payable on the Supply of the Property” where the central concepts to be applied are defined in the Goods and Services Tax Act. The application of s 29-70(2) by this Court and the consideration of cl 10.8 are thus likely to involve the same analysis or substantially the same analysis.

42    Thus, the proceeding in this Court is sufficiently “related” to the proceeding in the Supreme Court to attract the operation of s 5(4)(b)(i).

43    Additionally, there are circumstances that go to the appropriateness of the claim in this Court being determined by the Supreme Court. These include that the Supreme Court proceeding was instituted first and is well progressed; given the overlapping issue of whether the Goods and Services Tax Act applies to the sale of the properties, and the likely common issues going to the contractual obligations of the parties, there is a risk of inconsistent findings of fact and application of law that should be avoided if possible; and there is a duplication of judicial resources to determine the common questions. In my view, other than Dr Quach’s choice to institute the proceeding in this Court, there is no other matter that would make it more appropriate for this Court to determine the claim made in this Court.

44    If I am wrong on the application of s 5(4)(b)(i), I consider that the same circumstances that I have outlined make a transfer order otherwise in the interests of justice.

45    As indicated above, Dr Quach sought to distinguish the contractual cause of action in the Supreme Court from the statutory claim in this Court. However, that submission misses the point of how s 5(4) operates. There need not be an identity of causes of action across the two courts for s 5(4) to be enlivened.

conclusions and Disposition

46    Since Dr Quach was entitled to file an amended statement of claim without the Court’s leave, I will order that the amended statement of claim be accepted for filing. While the timing of its lodgement on the morning of the hearing of the interlocutory application was inconvenient, that circumstance does not defeat his entitlement to file an amended pleading.

47    Dr Quach did not seek an order for the joinder or substitution of parties and, accordingly, I will not make such an order. The questions of standing and whether orders should be made in relation to the identity of the applicant will be matters for the Supreme Court to determine.

48    For the foregoing reasons, I will make an order that the proceeding in this Court be transferred to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act.

costs

49    DME Max sought an order for costs on an indemnity basis for the reason that prior to filing its interlocutory application, DME Max requested Dr Quach’s consent to the transfer of the proceeding and foreshadowed an application for costs on an indemnity basis if consent to the transfer was not given. That request for agreement to a transfer, and the warning of the risk of indemnity costs, were first made on 5 May 2026 and renewed on 18 May 2026. Dr Quach did not respond to either letter.

50    In Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116, Jagot, Yates and Murphy JJ set out the accepted principles for the award of costs on an indemnity basis (at [3]–[5]):

The Court has a broad power to award costs in proceedings, including indemnity costs, under s 43 of the Federal Court of Australia Act 1976 (Cth) (the Act). In exercising the discretion to award costs, s 37N(4) of the Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1).

Usually the Court will award costs to the successful party on a party/party basis, but where the circumstances of the case warrant a departure from the usual course the Court may order indemnity costs. The principles relevant to an award of indemnity costs are well-established. There can be no exhaustive list of the circumstances that may warrant the exercise of the discretion.

In broad terms an order for indemnity costs requires that some special or unusual feature arises: Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3] (Finn J). Indemnity costs are not punitive but are designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). Such circumstances may include where allegations are made “which ought never to have been made”, where the case is “unduly prolonged by groundless contentions” (Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115 at [15], [17] (Davies J)), and 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) 81 ALR 397 at 401 (Woodward J)) or “persists in what should on proper consideration be seen to be a hopeless case” (J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303 (French J)).

51    I gave Dr Quach an opportunity at the hearing to address the question of whether costs should be ordered on an indemnity basis in the event that DME Max was successful in seeking a transfer order. Dr Quach submitted that the Court ordinarily does not order costs (which I took to be a reference to indemnity costs) against a litigant-in-person and reiterated the strength of his argument that s 5(4) of the Cross-vesting Act did not permit the consolidation of proceedings.

52    Being a litigant-in-person is not “of itself” a reason for denying an order for indemnity costs: Auerbach v Seven Network (Operations) Ltd (Costs) [2026] FCA 987 at [3] (Wheelahan J). However, as Rangiah, McElwaine and Horan JJ said in Sayed v National Disability Insurance Agency [2025] FCAFC 40 at [23]:

The fact that a litigant is self-represented, while not usually a basis for displacing the ordinary rule that costs follow the event, can potentially be relevant to the exercise of the discretion to award costs on an indemnity basis …

53    As Owens J said in Chohan v Commonwealth of Australia as represented by Department of Home Affairs (No 2) [2025] FCA 582 at [19], “it may be … appropriate to take into account a litigant in person’s lack of knowledge of the law, in conjunction with all other relevant circumstances of the case, in determining whether” the person’s conduct of the litigation was unreasonable.

54    In Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20], Kenny J identified the competing considerations that arise in considering whether to make such an order:

On the one hand, litigants in person, even if partially assisted by lawyers, often produce significant difficulties and unnecessary expense for the parties against whom they proceed: see Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ in Eq. These difficulties arise from their lack of knowledge of the law, unfamiliarity with court practice and, sometimes, lack of objectivity and want of lawyerly skills in reading and writing. … There may be other factors too that compound a self-represented litigant’s inability to utilise court procedures appropriately. On the other hand, a person’s capacity to gain redress for legal wrongs in the courts should not depend on his or her ability to pay for legal representation. In seeking to balance these considerations, the courts have been generally more reluctant to make orders for indemnity costs against self-represented litigants than against legally represented litigants.

55    See also Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594 at [7] (Heerey J).

56    On the one hand, the basis of the transfer application was clearly communicated to Dr Quach by DME Max, as was the intention to seek indemnity costs if consent was not forthcoming. The basis for the transfer that was explained to Dr Quach included that the “two proceedings appear to arise from the same, or substantially the same, facts and issues”; that “it is neither efficient nor proportionate for both proceedings to continue separately”, as that course will “increase costs unnecessarily”, “duplicate interlocutory steps and evidence”, “create a risk of inconsistent orders” and “delay the resolution of the dispute”; and that it was “plainly inefficient and contrary to the interests of justice for parallel proceedings to continue when the Supreme Court is already dealing with the dispute”.

57    On the other hand, an explanation of the basis for the transfer order and an early warning of an indemnity costs application alone may not be sufficient to support the making of a costs order on an indemnity basis: see Spalla at [21]. As a litigant-in-person, Dr Quach may not have appreciated that his contentions in opposition to the transfer were misconceived or devoid of merit. Indeed, at the hearing, he appeared to hold genuine conviction that this Court must hear the claim.

58    However, Dr Quach had the opportunity and sufficient notice to engage with DME Max in response to its two letters and, if he had done so, and communicated his reasons for resisting the application, the hopelessness of his position might have been pointed out to him. Further, in the letter of 18 May 2026, DME Max’s solicitors indicated that DME Max had filed in the Supreme Court a notice of intention to defend and counterclaim, thereby incurring legal costs and, further, that if consent or an adequate response was not forthcoming, DME Max reserved its rights to bring a transfer application in this Court, the costs of which were described as being entirely avoidable.

59    In all the circumstances, including that (a) parallel proceedings were already on foot in the Supreme Court; (b) Dr Quach was on notice that DME Max was incurring costs in that proceeding and that the costs of the transfer application were entirely avoidable if he consented to the transfer; (c) his grounds for resisting the transfer were misconceived or devoid of merit; and (d) his choice not to engage with DME Max’s requests for consent to the transfer denied the parties the opportunity to deal with the transfer application efficiently without the Court’s intervention, I consider that his position to defend the transfer request was unreasonable and that DME Max should be compensated fully for costs incurred in relation to the transfer application. Accordingly, costs should be awarded in DME Max’s favour on an indemnity basis.

60    By order 6 of the Court’s orders on 18 June 2026, the Court ordered that the costs of and incidental to the case management hearing held on 17 June 2026 were to follow the event in the interlocutory application. DME Max’s requests for Dr Quach to consent to the transfer of the proceeding preceded that case management hearing. Accordingly, the costs of and incidental to the case management hearing should also be paid by Dr Quach on an indemnity basis.

Associate:

Dated:    22 October 2026