Federal Court of Australia

Williams v Albarran (Costs) [2026] FCA 1584

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application filed 11 June 2026 be dismissed with costs.

2.    The matter be listed for case management at 9.15am on 30 October 2026.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    By interlocutory application filed 11 June 2026, the respondents seek to vary the costs order made in Williams v Albarran (Interlocutory Relief) [2026] FCA 680 (Interlocutory Judgment). That order provided that the costs of the application for interlocutory relief in the Originating Application filed 25 March 2026 be the respondents’ costs in the cause (Costs Order). In lieu of that order, the respondents seek an order that:

(a)    lump sum costs in the sum of $63,396.80, being the disbursements incurred by the respondents in relation to the interlocutory hearing by way of counsels’ fees and the transcript fee, be payable within 28 days; and

(b)    costs otherwise remain the respondents’ costs in the cause.

2    The respondents relied on r 40.02 and/or r 39.05(c) of the Federal Court Rules 2011 (Cth) to seek to vary the Costs Order, and sought that I exercise my discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rr 1.34 and 1.35 of the Rules to award lump sum costs payable within 28 days. The applicants contended that I should not exercise my discretion to vary the Costs Order, relying both on jurisdictional and discretionary grounds.

3    It was not in dispute that, were the orders to be varied and a lump sum costs order made, the respondents have complied with the GPN-COSTS Practice Note and the amount is appropriate.

4    I will address the question of jurisdiction first, and then turn to whether I ought to exercise my discretion.

Jurisdiction to vary the costs order

5    The respondents relied on r 40.02 and/or r 39.05(c) of the Rules for the Court’s jurisdiction to vary the Costs Order. Rule 40.02 provides that:

40.02 Other order for costs

A party or a person who is entitled to costs may apply to the Court for an order that costs:

(a)     awarded in their favour be paid other than as between party and party; or

(b)     be awarded in a lump sum, instead of, or in addition to, any taxed costs; or

(c)     be determined otherwise than by taxation.

and r 39.05(c) provides that:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

…

(c)     it is interlocutory; or

…

6    The applicants disputed the Court’s jurisdiction under r 40.02 on the basis that the respondents are not “entitled to costs” under the Costs Order, and instead submitted that jurisdiction is conferred only by r 39.05(c) which the applicants described as imposing “a significantly higher threshold” requiring there to be “exceptional circumstances” warranting the variation of the order.

Rule 40.02: Are the respondents “entitled to costs”?

7    The respondents submitted that they answer the description of a party “entitled to costs”. They submitted that “costs” as defined in the Dictionary to the Rules (being Schedule 1) is directed to the quantification or basis upon which costs are calculated, rather than the manner in which costs are paid (ie, when they are paid, how they are paid (ie, lump sum or otherwise), or, relevant to the present case, the conditions upon which they may be paid). Those definitions are as follows:

costs, unless the context otherwise provides, means costs as between party and party.

costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

8    The respondents submitted that the Costs Order is an order for “costs” as defined, and because the order is for their costs in the cause rather than costs in the cause generally, they are “entitled to costs”. This conclusion was said to find support in the Full Court’s decision in Mawhinney v Australian Securities and Investments Commission (No 2) [2022] FCAFC 205 (Allsop CJ, O’Bryan and Cheeseman JJ). In that case, Allsop CJ observed at [4] that:

The introductory phrase “a party or a person who is entitled to costs…” is apt to include a party or person who has in their favour an order for costs, which order means costs as between party and party (see r 40.01) …

and at [5] that:

The need for orders in paras 40.02(b) and (c) often will not be appreciated until well after the delivery of judgment and the likely entry of orders …

9    I was also referred to [44] of the joint judgment of O’Bryan and Cheeseman JJ, in which their Honours observed that:

Rule 40.02 applies when a party or person is entitled to costs. The language presupposes that a costs judgment or order has been made in favour of a party or other person, as no “entitlement” to costs exists prior to a court judgment or order as to costs. The rule contemplates that, following such a judgment or order, the party or person entitled to costs may apply to the Court for further orders in respect of those costs: that they be awarded other than on a party and party basis; that they be awarded in a lump sum; or that they be determined otherwise than by taxation. The principle underlying the rule would appear to be that such orders in relation to costs are in the nature of ancillary or supplemental orders which may be made notwithstanding that an order for costs has been pronounced and entered.

10    The respondents submitted that r 40.02 is applicable in the present case because a costs order was made and the respondents were not in a position to ascertain the extent of their success prior to the Court’s reasons being delivered, nor did they have the opportunity to agitate costs at the delivery of judgment (pointing, without criticism, to my indication to the parties that there would be no discourtesy to the Court if the parties did not appear at delivery). The respondents submitted that to draw a distinction between costs being in the cause and costs being payable in any event is arbitrary.

11    I do not accept that the respondents are “entitled to costs” within the meaning of r 40.02 on the basis of having the benefit of an order that the costs of the application be their costs in the cause. As the members of the Full Court emphasised in Mawhinney in the passages excerpted above, the orders for which a party may apply to the Court presuppose an entitlement to costs and “are in the nature of ancillary or supplemental orders which may be made notwithstanding that an order for costs has been pronounced and entered”. Rule 40.02 is directed to circumstances where there is already an entitlement to costs to which effect can be given. The phrase “entitled to costs” should be given its natural and ordinary meaning, in the sense of one party being required to pay another party’s costs and that other party being entitled to be paid those costs. That reading is consistent with Order 62 of the previous rules, r 4 of which refers to the Court’s power to make further orders in relation to “orders that costs be paid to any person” (emphasis added).

12    Under the Costs Order, the respondents only become “entitled to costs” at such time as they obtain a general costs order in the substantive proceeding. Before that time, the respondents are not “entitled to costs”, and in the event they are not awarded a general costs order, cannot be said to ever have been entitled to their costs. No general costs order has been made in the substantive proceeding.

13    I do not accept the respondents’ argument that construing “entitled to costs” in this way imposes inappropriate limitations which are not found in the express words of the text. In support of this contention, the respondents relied on the High Court’s observation in Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 421 that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”. That criticism was directed toward an interpretation of the definition of “proprietary maritime claim” in the relevant Act, being “a claim … relating to … ownership of … a ship”, that excluded claims by plaintiffs asserting rights which involve or may involve another’s ownership. Those circumstances are far from the present case. Here, the question is whether a person is “entitled to costs” such that they can apply to the Court for further orders of the kind referred to in sub-ss (a) to (c) as to the manner in which the costs are awarded. Construing the words “entitled to costs” as requiring a party to have a present claim to costs does not involve imposing limitations beyond the express words of the provision, but instead attributes to those words their natural and ordinary meaning.

14    Further, the respondents’ argument that this interpretation has the effect that any “costs in the cause” order would be incapable of variation pursuant to r 40.02 until a final general costs order is made is of little consequence in light of the operation of r 39.05, which affords the Court discretion to vary or set aside a judgment or order after it has been entered in certain circumstances, including in the case of interlocutory orders, as well as the Court’s broad discretion to make orders as to costs under s 43 of the FCA Act.

Rule 39.05(c): Was the costs order interlocutory?

15    It was not in dispute that the Court has jurisdiction to vary the Costs Order under r 39.05(c) of the Rules.

16    In DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120, Charlesworth J observed at [40] that “[t]he power to make a costs order is ancillary to the power to adjudicate the substantive controversy” and that “[o]rders made in the exercise of the power are plainly interlocutory in nature” (citing Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; 256 FCR 306 at [67] and Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2019] FCA 1458 at [23]).

17    As the Costs Order was made in the context of the applicants’ application for “interlocutory relief” in their Originating Application, I am satisfied that it is one that enlivens the jurisdiction conferred by r 39.05 of the Rules.

Should the costs order be varied?

18    The principles relevant to the exercise of my discretion under r 39.05(c) were set out by O’Bryan J in Polis v Zombor (No 5) [2022] FCA 122 at [43] and [45] as follows:

[43] The discretion permitted to the Court by r 39.05, while in its terms unconfined, should ordinarily be exercised only in exceptional circumstances, bearing in mind the overarching principle of the finality of litigation. Generally, the exercise of the discretion is limited to circumstances where it can be shown that, without fault on the part of the applicant, he or she has not been heard on a relevant question. An application under r 39.05 is not an appeal and is not the appropriate means by which to contend that the Court’s orders are affected by an error of law.

…

[45] In respect of r 39.05(c), the principle of the finality of litigation is also relevant to interlocutory orders and “counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be re-opened for consideration and set aside”. The too-ready resort to, or incautious application of, the power to vary or set aside orders, even of a procedural nature, also subverts the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth)… of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The ability of a party to re-litigate interlocutory matters after they have been thoroughly determined is generally limited to situations where there has been a material change in circumstances or where new material has been discovered which could not reasonably have been put before the Court on the previous occasion.

(Citations omitted)

19    The requirement of the existence of “exceptional circumstances” was reiterated in AZO24 v Commonwealth of Australia [2025] FCAFC 77. At [104], Raper J said:

The scope of r 39.05 (which applies after entry) is narrower than provided for by r 39.04; in that it is a power only enlivened by the existence of one of the matters specified in paragraphs (a) - (g), and once enlivened, it is discretionary power, to be exercised judicially, with caution, in “exceptional circumstances”. The underlying principle of the finality of litigation has particular force in circumstances involving interlocutory orders (r 39.05(c)) where the subject of the order has already been the subject of unsuccessful appellate or review processes. The rule cannot be used as an alternative to the appellate procedure available with respect to interlocutory judgments. It is a power that may be enlivened and exercised for the purposes of 39.05(c), (g) and/or (h) to rectify injustices or reflect the true intention of the Court, for example, by removing a civil penalty imposed upon an individual respondent when one had not been applied for by an applicant and would not have been ordered had the Court known that to be the case; to clarifying the scope of ambiguous declarations made in a proceeding, including from several years prior where there remains a dispute between parties; or to vacate an order for costs made under a misapprehension of the Court’s jurisdiction to award costs in the proceeding; or, where the Court made no order for costs under a misapprehension that none was sought.

(Citations omitted)

20    These principles were not in dispute.

21    The respondents submitted that the threshold required by r 39.05 is met by the combination of two matters: first, the respondents were unable to ascertain the extent of their success prior to the delivery of the judgment, and second, because the parties were not required to attend the delivery of judgment and judgment was delivered in the absence of the parties, the respondents were not afforded the occasion to agitate their position on costs at the time of delivery, which the respondents submitted would have been the appropriate time and place to do so.

22    The applicants, on the other hand, contended that the Costs Order was made following a properly considered judgment on the merits of the application, and the respondents’ application seeks to relitigate thoroughly determined matters contrary to the overarching purpose in s 37M of the FCA Act.

23    The question of costs was not ventilated at the interlocutory hearing on 19 and 21 May 2026, and the respondents did not have the opportunity to make submissions on costs at judgment delivery in circumstances where the parties were, by communication from my Chambers, not required to (and did not) attend judgment delivery. In these circumstances, I am content to hear the respondents’ application; however, for the reasons that follow, I am not moved to exercise the discretion to vary the Costs Order.

24    As set out in paragraph [1] above, the respondents seek to vary the Costs Order such that:

(a)    their disbursements be assessed in the lump sum of $63,396.80 and be payable within 28 days; and

(b)    their remaining costs, being professional fees, remain the respondents’ costs in the cause.

25    Section 43 of the FCA Act confers a broad discretion on the Court to award costs, to be exercised judicially. A guiding principle of the exercise of that discretion is that “the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited”: see Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at 173 [25] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.

26    Of course, both parties can enjoy measures of success. In such cases, as Barrett J said in Golding v Vella (No 2) [2001] NSWSC 731 at [8]:

It is not necessary and perhaps unwise, to be too technical about measuring success on the various issues pleaded: “one does not look at issues as if they were pleader’s issues, but approaches the matter with a broad brush”: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, at 22, per Young J.

27    This “broad brush” approach has been said to depend upon “matters of impression and evaluation”, with mathematical precision being “illusory”: Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271–2 per Gummow, French and Hill JJ. As the English Court of Appeal observed in Roache v News Group Newspapers Ltd [1992] TLR 551, cited by Pincus JA, Davies JA and Mackenzie J in Timms v Clift [1998] 2 Qd R 100 at 107, the question is:

Who, as a matter of substance and reality, ha[s] won? Ha[s] the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Ha[s] the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?

28    The respondents contended that they “denied all of the interlocutory prizes which the applicants fought to win” (emphasis in submissions), while the applicants contended “it is not the case that Applicants were wholly ‘unsuccessful’ in any sense of the word” and themselves had substantial success.

29    There were four primary prayers for interlocutory relief the subject of the Interlocutory Judgment. Prayer 1 sought leave for the first applicant to bring proceedings on behalf of the third applicant. This relief was not contested by the respondents. As set out in paragraphs [9] to [12] of the Interlocutory Judgment, I found that leave would be required, and granted leave to the first applicant on the basis of being satisfied of the factors set out in s 237(2) of the Corporations Act 2001 (Cth). The applicants were successful in this respect, although it was uncontested.

30    Prayers 3 and 4 sought that the Court appoint independent receivers, and discharge the existing receivers, on specified terms, including authorising them to sell one of the Montague Properties (the Capulet Estate Property) and the GPRD royalties owned by U Minerals. As noted at paragraphs [33] to [34] of the Interlocutory Judgment, part of the applicants’ stated rationale for seeking to replace the receivers and grant the injunction (being Prayer 2, explained in more detail below) was their concern about the conduct of the receivers. The applicants sought that the Court appoint independent receivers to resolve the issues as to the ownership of assets between the applicants and to otherwise recover and account for the assets held by the receivers.

31    Shortly before the hearing commenced on 19 May 2026, the receivers whom the applicants sought to replace retired. The respondents submitted that the retirement of those receivers rendered prayers 3 and 4 otiose, while the applicants still pressed for their relief, including because they were concerned about property already taken by the receivers, and for the ability of incoming receivers to sell the specified property and also to report on the assets of the applicants.

32    I declined to make the relief sought by the applicants in prayers 3 and 4. In that respect, the applicants were not successful, although I appreciate the applicants’ submission that the relief sought was in part resolved by the retirement of the receivers shortly before the hearing, in the absence of which they may have had a greater degree of success.

33    Prayer 2 of the interlocutory relief was the item of most contest. It sought the following relief:

Upon the Applicants giving the usual undertaking as to damages, an interlocutory injunction that, until further order, whether by themselves, their officers, servants, agents, or howsoever otherwise, the Respondents be:

(a)     restrained from:

(i)     enforcing the Facility and Security Agreements;

(ii)     selling or dealing with any assets of the Applicants, including but not limited to:

A.     the below Montague Properties via listed auction; and

B.     the royalties under the Gross Production Royalty Deed in favour of the Fourth Defendant;

(iii)     attending the properties commonly known as:

A.     325 Tom Cullity Drive, Wilyabrup Western Australia 6280 (the Montague Estate Property);

B.     Lot 26, 3599 Caves Road, Wilyabrup, Western Australia 6280 (the Capulet Estate Property);

C.     Lots 32, 33 and 34, 241 Clews Road, Cowaramup, Western Australia 6284 (the MVRE Property)

(the Montague Properties)

(b)     compelled to:

(i)     deliver up to the Second Applicant all property, documents and information taken from in and around the cellar door building at the Montague Estate Property;

(ii)     deliver up to the Second Applicant the Grifo Grape De-stemmer removed from the main wine shed at the Montague Estate Property;

(iii)     deliver up to the Second Applicant the keys to the main wine shed and the cellar door building located at the Montague Estate Property;

(iv)     inform Westpac Bank to release the stop on the Second Applicant’s debit card ending x6768.

34    The success of the parties was mixed in relation to prayer 2. I declined to grant the injunction sought in 2(a) for the reasons set out in paragraphs [64] to [72] of the Interlocutory Judgment. In that respect, the respondents were successful and the applicants were unsuccessful.

35    Prayer 2(b)(ii) only occupied slight attention at the interlocutory hearing. The respondents contended there was a live issue about the ownership of that item, and the applicants did not address it. I did not make orders in respect of 2(b)(ii), and indicated at paragraph [74] that the parties may relist the matter should there be any further agitation.

36    In relation to prayer 2(b)(iv), the respondents indicated at the hearing on 19 May 2026 that they accepted the force of the relief sought by the applicants and had already informed Westpac to release the stop on the debit card. I made a notation in the orders made on 1 June 2026 to that effect. The applicants were successful in obtaining the relief sought, although it had been resolved prior to the hearing.

37    In respect of prayers 2(b)(i) and (iii), the respondents said at the interlocutory hearing that they could not be heard against that relief. At the time, I clarified whether that meant the respondents consented to those orders and was informed by counsel for the respondents that “I can’t see a world in which I can oppose it”. On the application presently before me, the applicants made the point that this concession was made halfway through the hearing. Indeed, the concession was made after Mr Mason, the solicitor who appeared for the applicants, had made his oral submissions in chief, and the respondents’ written outline of submissions did not particularise this concession and appear to dispute the entirety of the relief sought in prayer 2. In that respect, and to use the language in Roache extracted above, the applicants were required to “fight” for that particular prize.

38    The applicants put on an affidavit from the first applicant, Paul Montague Williams, which deposed to the quantity of wine retrieved, being approximately 40,000 bottles which Mr Williams considered to have an approximate retail value of $2,000,000. (There was some dispute before me about the admissibility of that evidence – I found that it was admissible, although the evidence does not bear much upon my conclusion about the measure of the applicants’ success). The applicants submitted that the return of the wine was “the real prize”.

39    The respondents submitted in response that even if that were the prize sought, the prayers for interlocutory relief were much broader and conflated the practical outcome of such relief, which the respondents said were predominantly its successes. The respondents also pointed to the fact that they retained some 1,666 cases of wine with an estimated retail value of $690,000, which they said was a success of their own.

40    Embracing the “broad brush” and impressionistic approach to the exercise of my discretion as set out in the authorities referred to above, I maintain my view expressed in paragraph [75] of the Interlocutory Judgment that:

The applicants had some areas of success in relation to order 1 and order 2(b). However, those were orders which were not contested by the respondents. Otherwise, they were unsuccessful. Costs of the application are the respondents’ costs in the cause.

41    Both parties enjoyed a measure of success. While I accept the respondents’ submission that the applicants’ successes arose on issues which the respondents did not contest, I still consider that the applicants enjoyed a reasonable degree of success in circumstances where the respondents indicated their non-objection to prayers 2(b)(i) and (iii) on their feet and part way through the hearing, and the receivers retired shortly prior to the hearing of the motion (and after the applicants had filed their evidence and written submissions). The Costs Order reflects my impression that the respondents’ successes were greater, but that the applicants did have some success in obtaining the interlocutory relief they did.

42    There is nothing before me which is compelling as to why I should exercise a discretion to vary the Costs Order in the manner sought by the respondents.

Conclusion

43    I decline to vary the Costs Order. The interlocutory application of 11 June 2026 should be dismissed with costs.

Associate:

Dated:    23 October 2026

SCHEDULE OF PARTIES