Council of the City of Broken Hill v Redenbach Group Pty Ltd (No 2)

1. [1]

   This judgment concerns the orders to give effect to the judgment given in the substantive dispute and costs: see Council of the City of Broken Hill v Redenbach Group Pty Ltd [2026] NSWSC 262 (Judgment).

2. [2]

   Broadly, Council sought:

   1. (1)

      Recovery of trust money the Redenbach parties had paid themselves for “uplift fees” on legal fees totalling $1,812,968.81 ex GST;

   2. (2)

      Recovery of other payments Council had made for legal services to Passer Par in the amount of $712,129.15 incl GST, and to Redenbach Group in the amount of $55,564 incl GST, where the rates charged were higher than agreed tender rates;

   3. (3)

      Damages from Redenbach Group and Passer Par for misleading or deceptive conduct regarding the preparation of the bill of costs; and

   4. (4)

      The appointment of a referee to enquire and report on the amount of fees that Council was charged for time in excess of legal work performed and billed, and for “time not previously charged” by Mr Redenbach.

3. [3]

   The Redenbach parties advanced positive defences. They also made cross-claims against Council, Mr Nankivell, and Mr Roncon, which sought:

   1. (1)

      To charge Council further fees at retrospectively increased rates; and

   2. (2)

      Damages for misleading or deceptive conduct from Council, Mr Nankivell and Mr Roncon, based on alleged conversations about uplift fees, charging higher fees and the deferral of invoicing fees.

4. [4]

   Council largely succeeded. The Redenbach parties’ cross-claims failed.

5. [5]

   Importantly, the substratum of facts that gave rise to the whole of the proceedings involved Mr Redenbach, who at all material times was:

   1. (1)

      An officer of the Court;

   2. (2)

      The trusted solicitor for Council; and

   3. (3)

      The controlling mind of the corporate parties, when they acted for Council and during these proceedings.

6. [6]

   For the reasons that follow, I consider it appropriate to make a form of orders very similar to those sought by Council and Mr Nankivell, and Mr Roncon (including indemnity costs orders fixed in a gross sum).

Final orders ought to be made

1. [7]

   The Redenbach parties resisted any final orders being made, other than:

   1. (1)

      They should pay Mr Roncon’s costs as agreed or assessed, but with enforcement stayed pending the determination of a foreshadowed appeal; and

   2. (2)

      A reference be ordered in accordance with Judgment at [247].

2. [8]

   Their explanation for that position in correspondence to Council’s solicitors was that:

3. [9]

   While not repeated orally, I reject that assertion. I consider that it is Council who has suffered prejudice in having been wrongfully held out of settlement trust funds for years. There is unlikely to be any prejudice to the Redenbach parties, even if it was later found that Council was overpaid, as money could readily be recovered from Council; it poses no credit risk. Further, should any adjustment be appropriate, the parties would likely raise the issue during the reference.

4. [10]

   The reference will not affect the quantum of most of the claim, which has been determined. It is appropriate to finalise as much of the proceedings as is possible.

5. [11]

   While the Redenbach parties accepted it is appropriate to make final orders concerning Mr Roncon, who will not be a party to the reference process, I reject the Redenbach parties’ submission that orders in favour of Mr Roncon ought to await any appeal; there is no principled reason to do so.

Orders for reference

1. [12]

   I will make the unopposed reference orders proposed by Council, which are in the usual form.

2. [13]

   I reject the Redenbach parties’ submission that they ought not bear any liability in relation to the reference, because the plaintiff must do “further work and thus make out its claim”. Instead, I have found that the Redenbach parties have ostensibly overcharged Council, and that a reference ought to determine the exact scope of the overpayment. Any issue concerning the costs of the reference can be considered after there has been a hearing about the adoption (or otherwise) of the referee’s report.

3. [14]

   The parties were directed to agree on a costs assessor to carry out the reference. They did not. Instead:

   1. (1)

      Council proposed Mr Christopher Wall, who has been a costs assessor for about 31 years, is a member of the Costs Committee of the Law Society of NSW and the Costs Assessment Rules Committee, and a review panellist. He has previous experience as an expert witness and as a Court appointed referee. His hourly rate is $400 plus GST.

   2. (2)

      The Redenbach parties proposed Mr John Sharpe who has about 32 years of experience as a costs assessor; he is a review panellist, a member of the Costs Assessment Rules Committee and has provided training on costs assessments. He does not indicate in his curriculum vitae whether he has acted as an expert witness or as a Court appointed referee before. His hourly rate is $500 plus GST.

4. [15]

   Obviously, both are highly qualified. However, I consider it most appropriate to appoint Mr Wall, primarily because:

   1. (1)

      His hourly rate is cheaper;

   2. (2)

      He has indicated that he has performed the role of Court appointed referee previously; and

   3. (3)

      He outlined the process he would adopt in carrying out the reference.

5. [16]

   I note that the Redenbach parties did not make any submission that Mr Wall would not be an appropriate referee.

Avoidance of Council being overcompensated

1. [17]

   Council appropriately acknowledged that there could be some overlap between its successful claims in respect of the period after the bill of costs misrepresentation on 22 April 2022.

2. [18]

   Council is entitled to $504,698 from Passer Par in relation to its claim for misleading and deceptive conduct: Judgment at [309].

3. [19]

   This award was calculated using, as a starting point, the fees actually charged to Council to prepare the bill of costs by Passer Par (until about 1 July 2022) and then Redenbach Group (from about 1 July 2022) in INV1029 issued 22 April 2022 through to INV1094 issued 11 December 2022, totalling $973,131 ex GST. The sum of $504,698 is the difference between the “actual” fees against a “counterfactual” fees in which Blackstone Legal Costing Australia Pty Ltd prepared the bill of costs.

4. [20]

   The Judgment also found that Council is entitled to restitution:

   1. (1)

      Totalling $712,129.15 incl GST on its claim for restitution for fees paid in excess of the tender rates to Passer Par: Judgment at [232(1)]. This award covers invoices up to INV1050 issued 1 July 2022; and

   2. (2)

      Totalling $55,564 incl GST on its claim for restitution for fees paid in excess of the tender rates to Redenbach Group: Judgment at [232(2)]. This award covers invoices from INV1056 issued 11 July 2022 to INV1094 issued 11 December 2022.

5. [21]

   To the extent that the entitlement to restitution arises in respect of invoices issued from 22 April 2022 to 11 December 2022, the loss caused to Council by Passer Par's misleading or deceptive conduct, for which Passer Par is liable, should be reduced. This is provided for in orders 14 and 15.

6. [22]

   The Redenbach parties did not make any submission against these orders.

Interest

1. [23]

   Council also claimed interest on the amounts repayable by the Redenbach parties. No submission was made as to why Council would not be entitled to such interest, and I accept Council is so entitled.

2. [24]

   I accept Council’s solicitor, Mr Meagher’s, calculations of interest; the Redenbach parties did not take issue with these calculations.

3. [25]

   First, interest on Council's claim for restitution of amounts paid in excess of tender rates were calculated on an invoice-by-invoice basis and a schedule of calculations was provided.

4. [26]

   For Passer Par, the first invoice for which interest has been included is INV0219, which was paid on 28 March 2019; the last invoice is INV1050, which was paid on 7 July 2022; and total interest is $218,851.44.

5. [27]

   For Redenbach Group, the first invoice for which interest has been included is INV1059, which was paid on 28 July 2022; the last invoice is INV1094, which was paid on 15 December 2022; and total interest is $15,726.82.

6. [28]

   Secondly, with respect to interest on the damages payable by Passer Par for misleading or deceptive conduct, interest was calculated on the sum of $424,637.80 rather than the full awarded sum of $504,698. $424,637.80 is the sum produced by subtracting the sums $24,495.90 and $55,564.30 from $504,698. The subtracted sums are the amounts awarded to Council for restitution for fees paid in excess of the tender rates to Passer Par and Redenbach Group, respectively.

7. [29]

   The starting date for the calculation of interest was 16 December 2022, because the last invoice in relation to the drafting of the bill of costs was paid by 15 December 2022. This start date has been adopted in order to calculate the interest payable conservatively, as opposed to apportioning an amount of $424,637.80 against each invoice rendered for preparation of the bill of costs.

8. [30]

   Counsel for the Redenbach parties made the extraordinary submission at the hearing on 13 April 2026 that none of his clients, instructing solicitor nor he “ha[d] time” to consider Council’s interest calculations, despite having received them on 2 April 2026; further it was in effect submitted that the Redenbach parties only considered it necessary to start considering Council’s calculations if there were directions requiring them to do so, which is inconsistent with legal practitioners and parties adhering to the overriding purpose in the Civil Procedure Act 2005 (NSW) s 56 (CPA). Nevertheless, I gave the Redenbach parties the time they requested to consider the interest calculations. After the adjournment, the Redenbach parties did not challenge the calculations. I will make them.

Indemnity costs – Redenbach parties’ unreasonable conduct

1. [31]

   I accept that the Redenbach parties should pay the costs of the proceedings of Council, Mr Nankivell and Mr Roncon on an indemnity basis, because of their unreasonable conduct during the litigation.

2. [32]

   The principles concerning making indemnity costs orders are well known and may be summarised:

   1. (1)

      The particular facts and circumstances must warrant the making of an order for payment of costs other than on the ordinary basis: see eg Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J) (Colgate).

   2. (2)

      Indemnity costs are reserved for “clearly exceptional cases”: New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 at 494 (Kirby P). They are not to punish an unsuccessful party for pursuing a case that fails, but rather, seek to compensate a successful party fully for costs incurred, when the Court finds it was unreasonable for the other party to have subjected the successful party to the costs expenditure: Hamod v New South Wales (2002) 188 ALR 659 at [20] (Gray J, Carr and Goldberg JJ agreeing); Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 (Gaudron and Gummow JJ).

   3. (3)

      An unsuccessful party must exhibit some “special or unusual feature: Collier v Country Women’s Association of New South Wales [2018] NSWCA 36 at [117] (Gleeson JA).

   4. (4)

      It is insufficient to order indemnity costs solely on the basis that a witness is not to be believed or that their evidence is fabricated: see eg Roberts-Smith v Fairfax Media Publications Pty Limited (No 45) [2023] FCA 1474 at [10]-[11] where Besanko J cited Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1866 at [31]-[32] (Kenny J).

   5. (5)

      This usually concerns how the litigation was conducted, including the persistence of what should have been seen to be a “hopeless case”, where the unsuccessful party’s conduct was “unreasonable or delinquent”, or where a party incurs unnecessary expenses in meeting unmeritorious claims based on deliberate falsehoods and falsified records: see eg Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 at [47] (Mitchelmore JA) (and citations therein); Foundas v Arambatzis (No 4) [2023] NSWSC 1648 at [18] (Rees J) (and citations therein).

3. [33]

   I consider that the following conduct of the Redenbach parties in the litigation was unreasonable and justifies indemnity costs orders.

4. [34]

   First, Mr Redenbach was the only lay witness for the unsuccessful Redenbach parties. He was not a credible witness, and, through him, the Redenbach parties made denials, claims and defences that ought never to have been made: see eg Judgment at [25]-[26], [49], [124]-[125], [238]-[239]; see also Colgate at 233.

5. [35]

   Council succeeded in its claim that it was not liable for uplift fees and for rates charged above the tender, and was entitled to be repaid those amounts taken from the settlement trust fund. I found that Mr Redenbach's version of conversations with Mr Nankivell and Mr Roncon around the costs agreements were completely incredible and false in light of all the evidence and inconsistencies with Council's version of events: Judgment at [22]-[24], [41]-[52]. Mr Redenbach’s version was unsubstantiated by documentary evidence and, where there was documentary evidence, Mr Redenbach’s version was inconsistent and illogical: see eg Judgment at [49], [153], [235]. I found that Mr Redenbach knew that Council never agreed to an uplift or deferred fee nor the dispersal of the trust fund, yet persisted with that version of events in defence of Council's claims and by way of cross-claims throughout the litigation: see Judgment at [153], and also [173], [177], [209] and [215].

6. [36]

   I consider that Mr Redenbach should have known the Redenbach parties had no chance of defending Council’s claim. As the Redenbach parties’ counsel originally submitted (Judgment at [177]), it was a binary question of whether I believed Mr Redenbach’s version of the conversations in respect of any uplift fee, which I did not. The Redenbach parties ran a positive and defensive case based on alleged conversations, which Mr Redenbach knew to be false: see eg Barrett Property Group v Metricon Homes (No 2) [2007] FCA 1823 at [13]-[16] (Gilmour J). The proffering of false versions of conversations to justify the Redenbach parties' wrongful conduct is exceptional.

7. [37]

   Secondly, I consider that Mr Redenbach unnecessarily prolonged the hearing with “deliberately false defences or allegations of fact”: see Liu v Lam (No 2) [2025] NSWSC 264 at [59] (Walton J) (Liu). For example, in a letter from the Redenbach parties’ solicitor to Mr Roncon’s solicitor it was alleged that each of Mr Nankivell and Mr Roncon had:

8. [38]

   Further, Mr Redenbach consistently prevaricated in cross-examination and persisted with a version of events that was illogical and false: see particularly Judgment at [24], [32]-[33], [43]-[52], [124]-[129], [132], [177], [234]-[245], [320]-[322]; see also Liu at [59]; Colgate at 233.

9. [39]

   Thirdly, the Redenbach parties delayed the conduct of the proceedings: see eg Colgate at 233. The Redenbach parties alleged that Council's current solicitors had been negligent and an apportionment of liability against them was appropriate. That allegation was only abandoned after the hearing commenced and clearly caused wasted time and expense: see Judgment at [25(1)].

10. [40]

    The Redenbach parties failed to comply in a timely manner with a security for costs order made in September 2024 and sought extensive extensions of time to serve their evidence, requiring the matter to be relisted and causing unnecessary delay and cost in these proceedings. For example:

    1. (1)

       On 29 November 2024 the cross-claimants filed a 35-page affidavit of Mr Redenbach, in which he deposed he required 336 hours to finalise the Redenbach parties’ evidence.

    2. (2)

       On 2 June 2025, the cross-claimants wrote to Mr Roncon’s solicitor indicating that they would need 837 hours to prepare a reply to the cross-defendants’ evidence, and seeking until 14 February 2026, being 8 months, to do so. That letter included:

11. [41]

    Much of the evidence prepared was irrelevant or read as a submission only.

12. [42]

    I reject the Redenbach parties’ submission that “the biggest road block in these proceedings was when Mr Roncon failed to file his defence or response to the [amended] cross‑claim. His response was … more than two months late.” The Amended First Cross-Claim had only added the second cross-claimant, Passer Par, with no other substantive amendments; Mr Roncon’s six-week delay could not seriously have impacted the progress of the Redenbach parties’ evidence in circumstances where his Commercial List Response was filed on 24 May 2024, and his Amended Commercial List Response filed on 25 October 2025 made only minor amendments to address the addition of Passer Par as a cross-claimant. Further, Mr Roncon’s delay was in the context of a more significant breach by Redenbach Group and Passer Par of Court orders of 13 September 2024, requiring payment of an agreed tranche of security into a trust account.

13. [43]

    Fourthly, the Redenbach parties were aware of Mr Roncon and Mr Nankivell’s pleaded immunity under Local Government Act 1993 (NSW) s 731, and otherwise ought to have known, properly advised, that the cross-claims against Mr Nankivell and Mr Roncon would therefore fail: see eg Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [4] (Allsop P); Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94 at [9] (Macfarlan, Payne JJA and Sackville AJA). Regardless of whether I accepted that the oral conversations occurred as alleged by Mr Redenbach (which I did not), there was no evidence that Mr Roncon and Mr Nankivell did not act in good faith in the course of their duties, nor was this suggested to them during cross-examination, which would tell against the immunity applying: see Judgment at [327]. Rather, the Redenbach parties’ case appeared to be that Mr Redenbach knowingly asked Mr Roncon and Mr Nankivell to agree to terms favourable to his firm beyond the scope of their authority: see Judgment at [328]. Further, no loss was proved flowing from the alleged misleading conduct: see Judgment at [324]-[325]. I consider that the cross-claims against Mr Roncon and Mr Nankivell were groundless and ought not to have been commenced or maintained; they caused wasted time and expense: see eg Liu at [59]; Colgate at 233.

14. [44]

    Fifthly, the Redenbach parties failed to accept offers of compromise, which amounted to a genuine compromise on the part of Council and Mr Roncon. I consider that the refusal to accept these offers was imprudent: Colgate at 233.

15. [45]

    Sixthly, I required the parties to address the apparently wasted costs of an unnecessarily voluminous Court book: Judgment at [330]-[332]. The uncontested evidence is that the Redenbach parties served the vast majority of the material in the Court book; they included approximately 9,000 pages (compared to the other parties’ approximately 3,300 pages), mostly of Council tender documents and correspondence and invoices.

16. [46]

    The Redenbach parties’ evidence was, to a significant extent, irrelevant or only read as submissions. Much of the Redenbach parties’ documentary tender was irrelevant and after adjournments and further hearing time, many documents were excluded from the final version of the Court book that was ultimately accepted into evidence.

17. [47]

    In circumstances where there was no apparent attempt to limit the documentary tender to what was relevant and necessary, I found there was a failure to comply with paragraphs 4, 42 and 61 of the Practice Note SC Eq 3, which warns that where there is non-compliance, adverse costs orders may follow.

18. [48]

    This is further unreasonable conduct that unnecessarily extended the length of the hearing and increased the other parties’ costs and was part of the unreasonable conduct during the litigation providing the basis for an indemnity costs order.

Indemnity costs – unaccepted offers

1. [49]

   Should the above conclusion be erroneous, I consider that the Redenbach parties would be liable for indemnity costs because of unaccepted offers made by Council and separately Mr Roncon.

2. [50]

   First, each of the Redenbach parties failed to accept separate offers of compromise dated 26 April 2024, made by Council pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 20.26 (UCPR), or alternatively, relied upon by Council as Calderbank offers (see Calderbank v Calderbank [1975] 3 All ER 333).

3. [51]

   Each offer was open for acceptance for 28 days. Each was provided with a cover letter explaining the offer.

4. [52]

   The cover letter to the separate offers to Redenbach Group and Passer Par indicated that the offers related to Council’s claim against Redenbach Group for the “uplift fee” of over $1,800,000 taken from the settlement trust funds, and damages for the misleading conduct in relation to the bill of costs in an amount of about $600,000 and the overcharging by Passer Par beyond tender rates of about $765,000, together with pre-judgment interest and costs.

5. [53]

   The offer to Redenbach Group provided terms that:

   1. (1)

      Judgment be entered against Redenbach Group for $1,700,000, with any other judgment against any of the other defendants to be concurrent with (and not in addition);

   2. (2)

      No order as to costs of Council’s claim;

   3. (3)

      The cross-claims be dismissed with no order as to costs;

   4. (4)

      The sum of $1,000,000 held in trust by the Redenbach parties’ solicitors be released to Council.

6. [54]

   This was clearly a compromise on the amount that was sought in Council’s claim, both in terms of judgment amount and costs.

7. [55]

   The offer to Passer Par provided terms that:

   1. (1)

      Judgment be entered against Passer Par in Council’s claim in the sum of $700,000, with any other judgment against any of the other defendants to be concurrent with (and not in addition to) that judgment;

   2. (2)

      No order as to costs of Council’s claim.

8. [56]

   Again, this was clearly a compromise on the amount that was sought in Council’s claim, both in terms of judgment amount and costs.

9. [57]

   The cover letter to the separate offers to Mr Redenbach and Broken Hill Legal indicated that the offers related to the knowing receipt of trust funds by Mr Redenbach in the sum of $1,500,000 and Broken Hill Legal in the sum of $130,000, together with pre-judgment interest and costs. There was no reference in the cover letter to Mr Redenbach’s potential liability as a person involved in the misleading conduct concerning the bill of costs.

10. [58]

    The offer to Mr Redenbach provided terms that:

    1. (1)

       Judgment be entered against Mr Redenbach in Council’s claim in the sum of $1,500,000, with any other judgment against any of the other defendants to be concurrent with (and not in addition to) that judgment;

    2. (2)

       No order as to costs of Council’s claim.

11. [59]

    This was clearly a compromise on the amount that was sought in Council’s claim, both in terms of judgment amount (because it excluded any prejudgment interest) and costs.

12. [60]

    The offer to Broken Hill Legal provided terms that:

    1. (1)

       Judgment be entered against Broken Hill Legal in Council's claim in the sum of $125,000, with any other judgment against any of the other defendants to be concurrent with (and not in addition);

    2. (2)

       No order as to costs of Council's claim.

13. [61]

    This too was clearly a compromise both in terms of the judgment amount and costs.

14. [62]

    The Redenbach parties conceded that each offer made, in terms of the judgment sum to be entered against each defendant, was more favourable than the Judgment. However, the Redenbach parties resisted indemnity costs being ordered based on these offers, submitting that none of them could “be understood or responsibly assessed at that time they were purported to be made”. The complaint was that each of the offers was “ambiguous” or “uncertain” because of the inclusion in each of an identical order:

15. [63]

    The Redenbach parties relied on Tattersall v Dormakaba Australia Pty Ltd [2025] ACTCA 30 (Tattersall) where, at [38], Ainslie-Wallace AJ referred to a statement by Garling J in Farmer v Broadspectrum (Australia) Pty Ltd (No 3) [2024] NSWSC 53 at [86] that where offers are made under the UCPR, “clarity of expression and formality of the orders offered, are essential”. Ainslie-Wallace AJ also noted that offers must “indicate the orders proposed to dispose of the claim without ambiguity”: Tattersall at [44].

16. [64]

    In Tattersall, the offer in question made to all the defendants was “verdict for the plaintiff”, which did not clearly identify what would occur if one defendant accepted the offer, rather than all defendants. The offer was therefore ambiguous.

17. [65]

    I do not accept the same is true of Council’s offers. In the context where Council was primarily concerned about the loss of the settlement trust funds, it brought claims against the trustee and also against the knowing recipients of misapplied trust money. The repeated clarification order included in each of the offers made it clear that Council could not double recover the same lost trust funds against multiple defendants. That would be the ordinary outcome in any case concerning knowing receipt of trust funds wrongfully disbursed.

18. [66]

    The other submission appearing from the Redenbach parties’ solicitor’s affidavit, but not made orally, was that Council changed its claim materially after the offers were made, because Council served a further affidavit of Mr Nankivell just before the commencement of the hearing. It was said that the exhibit needed to be clarified and “caus[ed] disruption to the preparation of the Defendants’ case”. I reject that submission. That affidavit concerned quantum of invoices and amounts charged contrary to the agreements found; those were matters wholly within the knowledge of Mr Redenbach and therefore all Redenbach parties, and could not have materially interrupted their preparation. Further, the figures in the affidavit were not relevant to the quantum of the “uplift fees” taken from the settlement trust fund, which was the focus of the offers.

19. [67]

    In the alternative, I consider that the offers were Calderbank offers which made it clear they would be relied upon for the purposes of costs orders, provided for a genuine compromise, could be reasonably understood, and were unreasonably rejected where their acceptance would have resulted in a better outcome for the Redenbach parties than the Judgment: see eg Della Franca v Lorenzato (No 2) [2022] NSWCA 53 at [47] (Brereton JA, Basten JA agreeing); El Assaad v Al Haje (No 2) [2025] NSWCA 17 at [45] (Ward P, Ball JA and Price AJA).

20. [68]

    On the basis of the offers and their terms, indemnity costs would be payable from 27 April 2024, with costs on the ordinary basis until 26 April 2024. The Redenbach parties did not expressly resist that conclusion, beyond the complaints addressed above.

21. [69]

    Mr Roncon similarly sought indemnity costs on the basis that the Redenbach parties failed to accept his offer made on 7 August 2025, open for acceptance until 21 August 2025, which provided for judgment for Mr Roncon and for the Redenbach parties to pay his costs which, at the time, were approximately $179,000; the offer was more favourable to the Redenbach parties than the outcome in the proceedings.

22. [70]

    For the following reasons, I consider that the Redenbach parties’ failure to accept Mr Roncon’s Calderbank offer was unreasonable; they must pay Mr Roncon indemnity costs from 18 August 2025 (being the date the Redenbach parties refused the offer; the offer foreshadowed that indemnity costs would be sought from that date), with costs on the ordinary basis until 17 August 2025:

    1. (1)

       The costs component was genuinely compromised to accept $60,000 already paid for security for costs.

    2. (2)

       The pleadings and evidence were complete and the Redenbach parties were in a position to consider the reasonableness of the offer.

    3. (3)

       Mr Roncon received an outcome better than the offer in the form of an order for costs.

23. [71]

    The Redenbach parties made no submission as to why indemnity costs would not follow from that unaccepted offer. I consider that unaccepted offer would give rise to indemnity costs for Mr Roncon.

24. [72]

    In light of the Redenbach parties’ concession about the August 2025 offer and my conclusion, it is unnecessary to consider Mr Roncon’s further unaccepted Calderbank offer made on 18 December 2025.

Gross sum costs orders appropriate

1. [73]

   The principles concerning the discretion to award a gross sum costs order under CPA s 98(4)(c) are well known: see eg Hamod v New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA, Giles and Whealy JJA agreeing) (Hamod).

2. [74]

   The Court's discretion to make an order under s 98(4) is “unconfined”: Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 at [46] (Free JA, Ball and McHugh JJA agreeing). Relevant factors include the capacity of the unsuccessful party to satisfy any costs liability, the complexity of the proceedings in relation to their cost, and the desirability to avoid the expense and delay associated with a contested costs assessment: Hamod at [816]-[817].

3. [75]

   For the following reasons, I consider it appropriate to make an order that the Redenbach parties pay Council’s, Mr Nankivell's and Mr Roncon’s costs fixed in the gross sum.

4. [76]

   I accept that it is desirable to avoid the further unwarranted expense and delay associated with a costs assessment process in the circumstances identified above and where the Redenbach parties have unnecessarily and unreasonably expanded and delayed the litigation.

5. [77]

   I accept that a costs assessment process would likely be unduly protracted and that a gross sum costs order would assist in bringing finality to as much of the litigation as possible, and to avoid further satellite litigation. I also note that the Redenbach parties consented to providing Mr Roncon with security for costs. The doubt that they will be able to pay the costs liability is a relevant consideration: see eg Harrison v Schipp (2002) 54 NSWLR 738 at 742 [21] (Giles JA) (Harrison).

6. [78]

   The Redenbach parties submitted in correspondence that they would be denied natural justice, should a gross sum costs order be made. It appears the submission was that because Council’s Mr Meagher did not attach the relevant Council tender documents, pursuant to which Mr Meagher’s firm was briefed in the litigation, the Redenbach parties were denied the opportunity to challenge Mr Meagher’s evidence about the sums Council was charged. I reject that submission. It was always open to the Redenbach parties to make any challenge they considered appropriate to Mr Meagher’s evidence. In the circumstances where they led no evidence, the only question is whether there is sufficient evidence before me to fairly quantify a gross sum costs order. I consider there is, despite costs agreements and invoices not having been included in the evidence: see eg Harrison at 743 [22].

7. [79]

   I also reject the Redenbach parties’ submission that it would only be appropriate to make a gross sum costs order if Council had demonstrated the appropriate apportionment of liability for costs between the defendants.

8. [80]

   Generally, a Court will make joint and several orders for costs against defendants where their liability depends on a common substratum of fact: see eg Tsu v Nemeth [2012] NSWCA 29 at [69]-[70] (Handley AJA). Here, there was such a common substratum of fact. Mr Redenbach was responsible for all the corporate defendants and was party to the critical conversations and created most of the relevant documentary evidence. Further, the claims against the defendants were significantly interrelated. For example, the breach of trust claim was preliminary to findings of knowing receipt by the other defendants. Therefore, all the defendants had a common interest in the litigation. It is appropriate that any apportionment of costs be left to the defendants, and ought not become a burden for the successful Council and Mr Nankivell in circumstances where the Redenbach parties have not alleged any delinquency on the part of Council nor Mr Nankivell: Rushcutters Bay Smash Repairs v H McKenna Netmakers & Ors [2003] NSWSC 670 at [16] (Gzell J).

9. [81]

   Therefore, the Redenbach parties will be jointly and severally liable for Council and Mr Nankivell’s costs.

10. [82]

    The Redenbach parties did not make any specific submissions against a gross sum costs order being made in Mr Roncon’s favour. The issue of apportionment is not relevant to Mr Roncon.

Appropriate amount for gross sum costs order

1. [83]

   The Court may adopt a "broad brush" approach to quantification: Harrison at 743 [22]. That may involve an "impressionistic discount of the costs actually incurred or estimated, in order to account for the contingencies that would be relevant in any formal costs assessment": Hamod at [820].

2. [84]

   Ultimately, there must be sufficient material before the Court to carry out an informed assessment of actual costs: see eg Harrison at 743 [22]; Hamod at [813]; Bell v Hartnett Lawyers (No 4) [2023] NSWSC 1592 at [51].

3. [85]

   It has been observed that a 10% to 30% discount is typically appropriate to apply when making a gross sum costs order: WLD Practice Holdings Pty Ltd v Stockham [2020] NSWSC 1354 at [11] (Sackar J). Each case will, however, ultimately depend on the evidence before the Court: Hamod at [819]-[820].

4. [86]

   Council and Mr Nankivell jointly seek a gross sum for costs of:

   1. (1)

      $750,000, if costs are payable on an ordinary basis to 26 April 2024 and on an indemnity basis from 27 April 2024 (on the basis of the unaccepted offers). That is made up of:

   2. (2)

      Alternatively, $770,00 if costs are payable on an indemnity basis from the commencement of the proceeding, which would represent 90% of the total invoiced, rounded down.

5. [87]

   Council and Mr Nankivell provided the affidavit of Council’s Mr Meagher, who has over 18 years of experience as a solicitor, including as to costs assessments. He provided evidence of the amount charged to Council and Mr Nankivell for the three-year litigation of:

   1. (1)

      $358,149.54 plus GST in professional fees, by reference to the various solicitors involved and their hourly rates; and

   2. (2)

      $549,786.77 plus GST for the various disbursements, such as counsel’s fees, which made up the largest component of $442,945 plus GST.

6. [88]

   However, taken from that were costs incurred by Council in the AJ+C costs assessment proceedings; these were the subject of the Judgment. This resulted in the solicitor-client costs in the proceedings being $858,732.70 plus GST, which were made up of:

   1. (1)

      $341,849.54 plus GST; and

   2. (2)

      $516,883.16 plus GST, of which $442,945 plus GST was counsel’s fees.

7. [89]

   The hourly rates charged by the solicitors were reasonable; the most recent hourly rate of the senior solicitor was $461 plus GST, and the junior solicitor $405 plus GST. In this regard, I note that the tender rates charged by Passer Par up to 2021, being 5 years ago, was $390 ph ex GST for Mr Redenbach: Judgment at [70].

8. [90]

   I also consider counsel’s rates were reasonable, and there was no suggestion that it was inappropriate for Council and Mr Nankivell to brief senior and junior counsel.

9. [91]

   Further, Mr Meagher provided a breakdown of the cost of the various stages of the litigation with a helpful description of the tasks involved. The estimate of fees originally given to Council was not materially exceeded, and Mr Meagher provided Council with discounts on invoices.

10. [92]

    I reject the Redenbach parties’ submission that documentary evidence must be provided confirming that the rates charged were those rates contained in the relevant Council tender. The Redenbach parties did not provide me with any authority that required such evidence was required before a gross sum costs order could be made. I consider it is open to make a determination on the basis of the evidence of Mr Meagher, as an officer of the Court, that Council has been charged an agreed rate.

11. [93]

    Adopting a broad brush approach, and because I consider that indemnity costs ought to be paid by the Redenbach parties for the whole of the proceedings, I consider it appropriate to order the sum of $770,000. I do not consider it necessary to apply a global discount to this gross sum figure; this figure already represents 90% of the total invoiced, and I consider this amount is logical, fair and reasonable: see Hamod at [820].

12. [94]

    Mr Roncon seeks a gross sum costs order of $360,000 for indemnity costs for the entire proceedings, or alternatively, $340,000 by reference to the rejection of the Calderbank offer. The Redenbach parties did not make any cogent submission against indemnity costs after the latter date.

13. [95]

    Mr Roncon’s solicitor, Mr Riley, is a solicitor with 33 years of experience, including in relation to costs orders and assessments. He provided evidence that a total of $408,514.81 ex GST was charged to Mr Roncon, which is made up of:

    1. (1)

       $287,959.90 ex GST in professional fees; and

    2. (2)

       $120,555.81 plus GST in disbursements, including $101,845.81 in counsel’s fees.

14. [96]

    I accept that the hourly rates of the solicitors were reasonable; the senior solicitor’s hourly rate was $430 ex GST and the junior solicitor’s most recent hourly rate was $340 ex GST. I also accept that the hourly rates charged by counsel were reasonable.

15. [97]

    Mr Riley’s evidence is that in his experience, 90% of the professional costs would be payable on an assessment on the indemnity basis, with 100% of disbursements, which would be $367,663; rounded down, this would be $360,000. I consider that an appropriate order.

16. [98]

    If that was incorrect and instead ordinary costs were payable until the operation of the non-accepted August 2025 offer, with indemnity costs thereafter, I accept Mr Riley’s calculation that 70% of professional costs would be recoverable on the ordinary basis, with the above basis for indemnity costs. That would result in $344,468.81 in total, which would be appropriately rounded down to $340,000.

17. [99]

    For the reasons identified above, I consider the Redenbach parties ought to pay Mr Roncon’s costs on an indemnity basis for the whole of the proceedings, and therefore in the sum of $360,000. Part of that sum will be met by the money paid by way of security for costs.

Timing of operation of orders

1. [100]

   Council seeks that final orders concerning the breach of trust and payment of costs be “forthwith” orders.

2. [101]

   In circumstances where the trust monies have been misapplied and exhausted, I reject the Redenbach parties’ submission that they be given a generous time to comply with orders: trustees who are found to have misappropriated trust funds are unlikely to receive an order in their favour: see eg Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [152] (Gummow ACJ, Kirby, Hayne and Heydon JJ. I consider it appropriate that the trust monies be repaid within a very short timeframe.

3. [102]

   The order requiring the reconstitution of the trust fund ought to be complied within 7 days of the order being made, noting the Redenbach parties have been aware of the Judgment since 25 March 2026, and it has not been suggested why there would be any specific impediment in complying with the order. Once there is compliance with that order, there is no reason why Council ought not receive the sum I have determined, nor why the money held on trust for the benefit of Council ought not to be paid across in partial satisfaction of that sum within another 7 days.

4. [103]

   I do not accept that the costs orders need to be payable forthwith. However, Mr Roncon ought to receive the money held as security for costs promptly and within 7 days of the order being made.

Orders

1. [104]

   For those reasons, I make the following orders:

   1. (1)

      Subject to order 7 below, Mr Redenbach and Redenbach Group pay within 7 days of the making of this order the sum of $2,367,677.19 plus pre-judgment interest of $525,964 calculated in accordance with Schedule A into Redenbach Group’s trust account to be held on trust for Council and dealt with in accordance with orders 2 and 3 below: see Judgment at [210], [226].

   2. (2)

      Within 7 days of receipt of the trust funds and subject to order 7 below, Redenbach Group disburse $2,162,813 plus interest of $480,455 calculated in accordance with Schedule B to Council: Judgment at [210], [220].

   3. (3)

      The balance of the monies left in trust be held in Redenbach Group’s trust account until further order of the Court: note also Judgment at [226].

   4. (4)

      Mr Redenbach and Redenbach Group pay Council the sum of $1,994,265 in satisfaction of their statutory debt to Council under Legal Profession Uniform Law 2014 (NSW) s 185(5), plus pre-judgment interest of $473,490 calculated in accordance with Schedule C: Judgment at [13(1)], [219].

   5. (5)

      In partial satisfaction of the liability referred to in orders 2 and 4 above, Redenbach Group direct that its solicitors pay Council within 7 days of these orders the $1 million held by them in accordance with the undertaking given to the Court by Mr Redenbach on behalf of Redenbach Group on 4 July 2023.

   6. (6)

      Broken Hill Legal pay Council $130,000 in equitable compensation, plus pre-judgment interest of $28,878 calculated in accordance with Schedule D: Judgment at [218].

   7. (7)

      Mr Redenbach and Redenbach Group’s liabilities to reconstitute and disburse the trust funds referred to in orders 1 and 2 above be reduced to the extent to which:

   8. (8)

      Passer Par make restitution to Council of $712,129.15, plus pre-judgment interest of $218,851.44 calculated in accordance with Schedule E: Judgment at [232(1)].

   9. (9)

      Redenbach Group make restitution to Council of $55,564, plus pre-judgment interest of $15,726.82 calculated in accordance with Schedule F: Judgment at [232(2)].

   10. (10)

       Pursuant to UCPR r 20.14, Mr Christopher Wall (being a person with expertise in costs assessment) (referee) be appointed to enquire and report to the Court on (reference):

   11. (11)

       The referee:

   12. (12)

       The costs of the reference, including the referee’s remuneration, be paid in the first instance equally by Council and Passer Par/Redenbach Group.

   13. (13)

       The proceedings be stood over to 4 September 2026 for directions.

   14. (14)

       Subject to order 15, Passer Par pay $504,698 in damages to Council in respect of Passer Par’s contravention of s 18 Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch 2) plus pre-judgment interest of $94,330 calculated in accordance with Schedule G: Judgment at [309].

   15. (15)

       The quantum of damages referred to in order 14 above be reduced by the quantum of any restitution that:

   16. (16)

       Redenbach Group and Passer Par’s cross-claims be dismissed: see Judgment at [318]-[319].

   17. (17)

       Redenbach Group, Passer Par, Mr Redenbach and Broken Hill Legal pay Council and Mr Nankivell’s costs of the proceedings and cross-claims on an indemnity basis.

   18. (18)

       Council and Mr Nankivell’s costs be fixed in the sum of $770,000.

   19. (19)

       Redenbach Group and Passer Par and Mr Redenbach pay Mr Roncon’s costs of the cross-claim on an indemnity basis.

   20. (20)

       Mr Roncon’s costs be fixed in the sum of $360,000.

   21. (21)

       The funds held in the joint account referred to in the orders of 22 April 2025, together with any interest accumulated thereon, within 7 days of these orders, be released to Mr Roncon in partial satisfaction of order 20 above.