Ice Box Liquor Pty Ltd v Angius Investments Pty Ltd

1. [1]

   These proceedings were commenced on 8 December 2025 by summons.

2. [2]

   An application for short service was made before Slattery J on that occasion.

3. [3]

   They concern a property located at Coogee Bay Road, Coogee in New South Wales (the Property) which is owned by the defendant, Angius Investments Pty Ltd. The essence of the relief sought by the plaintiff, Ice Box Liquor Pty Ltd (Ice Box) in the proceedings is a declaration that an agreement for lease entered into on 10 October 2025 (AFL) is a valid, binding and enforceable deed (or, alternatively, agreement) and an order that the defendant specifically perform the AFL. Certain interlocutory relief is also sought in the summons.

4. [4]

   For reasons that I will explain shortly, the only remaining issue in these proceedings concerns costs. It is now accepted that the Court should make the declaration sought, namely that the AFL is valid, binding and enforceable, and that an order should be made requiring the defendant to specifically perform the AFL.

5. [5]

   In order to address the question of costs it is necessary to descend into a little detail regarding the underlying facts. As noted above, the Property in question is owned by the defendant. The defendant company has two directors: Robert Angius and his sister, Jenny Angius. It would appear on the material before me that there has been a long running dispute between Mr Angius and his sister.

6. [6]

   Relevantly, for present purposes, proceedings were commenced which, as I understand the material, resulted in a receiver being appointed to the defendant company which included the right of the receiver to deal with the Property.

7. [7]

   On 3 October 2025, orders were made by McGrath J in what I will refer to as the receiver proceedings. Those orders noted the terms of a deed of settlement and release dated 12 August 2025 between Mr Angius and his sister and the defendant company. The orders made by McGrath J also included the following:

8. [8]

   On 10 October 2025 the defendant (acting through the receiver) entered into the AFL.

9. [9]

   The AFL provided that the lease contemplated by it was subject to and conditional upon the Lessee “obtaining the Lesse's Approvals…on terms and conditions acceptable to the Lessee on or before the Sunset Date”. The Lessee's approvals was defined to mean:

10. [10]

    The Sunset Date set out in the AFL is 12 months from the date of it.

11. [11]

    There appears to be no dispute on the evidence before me that the directors of the defendant were not aware that the AFL had been entered into by the receiver with Ice Box on 10 October 2025.

12. [12]

    There is a little uncertainty on the evidence as to the precise date on which the directors of the defendant became aware of the existence of the AFL.

13. [13]

    It would appear that on 29 October 2025, Registrar Walton made orders approving the final accounts of the receiver of the defendant and otherwise dismissing the proceedings. Having regard to the orders made on 3 October 2025, in particular order 8, this should have meant that the receiver was discharged from his office upon final approval of the accounts. A company search of the defendant in evidence before me establishes that the receiver lodged the necessary forms with ASIC on 21 November 2025 as to the end of the administration.

14. [14]

    It further appears that on or about 26 November 2025 there were discussions between representatives of Ice Box and Peter Shaw regarding the Property. Mr Shaw was, or is, a real estate agent looking after the Property. During those discussions Mr Shaw was made aware that the AFL had been entered into. The purpose of the telephone call to Mr Shaw was to let Mr Shaw know that Ice Box needed to affix a legal licensing notice to the window of the Property for the purposes of obtaining the liquor licence which, as set out above, was one of the conditions precedent set out in the AFL.

15. [15]

    Mr Robert Angius has given evidence in an affidavit read before me that it was not until 1 December 2025 that he became aware, through Mr Shaw, of the existence of the AFL. He also says that it was not until 5 December 2025 that he actually obtained, or more accurately saw on a screen, a copy of the AFL.

16. [16]

    Mr Fernandes of counsel for Ice Box referred to the proposition that it is reasonable to assume that the receiver, on his retirement, would have provided all of the necessary documentation to the directors of the defendant, which would have included the AFL. The contention, as I understood it, was that it was likely or, perhaps, possible that the directors of the defendant became aware of the AFL, or ought have become aware of it, shortly prior to the date on which Mr Angius says that he first became aware of it. In my view, however, little turns on this issue.

17. [17]

    In any event, no agreement was forthcoming from the defendant permitting Ice Box to affix the necessary notice to the Property. Accordingly, the proceedings were commenced on 8 December 2025 when short service was granted by Slattery J.

18. [18]

    The proceedings returned before Slattery J on 12 December 2025. There was initially no appearance on behalf of the defendant. Eventually, Mr Angius, who, as I have said above, is one of two directors of the defendant, appeared before his Honour. His Honour ultimately made an order on 12 December 2025 in the following terms:

19. [19]

    His Honour listed the matter for directions before the equity registrar on 5 March 2026 at 9.30am. For reasons that are not entirely clear, the proceedings then came before me in the real property list on 6 March 2026. On that occasion it was only possible for a short hearing to occur before me and it was necessary for the proceedings to be stood over before me this morning.

20. [20]

    In the meantime - that is to say, between 12 December 2025 and this morning - there has been considerable correspondence between the parties. One aspect of that correspondence involved Ice Box pointing out to Mr Angius that, as one of two directors of the defendant company, there are requirements in the Uniform Civil Procedure Rules 2005 (NSW) governing when a director may represent a company in proceedings. Attempts were made to ascertain whether Mr Robert Angius was, indeed, authorised by the defendant to act for it in the proceedings. That issue was not resolved until this morning.

21. [21]

    In February 2026, Mr Angius, on behalf of the defendant, made an offer to Ice Box to settle the proceedings on the basis that the defendant would agree to be bound by the AFL, with there being no order as to costs of the proceedings. That offer was not accepted by Ice Box.

22. [22]

    Tendered before me at the hearing this morning is a resolution of the directors of the defendant, signed by both Robert Angius and his sister and dated 9 March 2026, which records the following resolutions:

23. [23]

    Pursuant to that resolution, Mr Angius has appeared for the defendant this morning without objection and made submissions on the question of costs.

24. [24]

    Ice Box seeks an order that the defendant pay its costs of the proceedings. It is also contended that those costs should be assessed on the indemnity basis.

25. [25]

    First, Mr Fernandes of counsel submits that this is an appropriate case in which to order the defendant to pay the plaintiffs costs because the defendant has effectively capitulated in agreeing to the orders sought. In those circumstances and in accordance with the well understood principles that the Court applies in determining costs where there has been no hearing on the merits, it is appropriate for a costs order to be made against the defendant. The indemnity costs argument is advanced on the basis that the defendant engaged in unreasonable conduct in the course of the proceedings, principally in relation to the representation of the defendant, or more accurately, the failure to clarify who had authority to represent the defendant.

26. [26]

    Mr Robert Angius contends that the appropriate costs order is that there be no order as to the costs.

27. [27]

    In support of the claim for costs, Ice Box has relied upon an affidavit of David Richard Owens dated 10 December 2025 together with the substantial exhibit to that affidavit, and an affidavit of Ice Box's solicitor, Andrew James McKenzie, dated 10 March 2026. Some additional documents have also been tendered.

28. [28]

    The defendant relies upon an affidavit of Mr Angius made 4 March 2026.

29. [29]

    The evidence before me contains a significant number of potential factual disputes. It is, of course, not the occasion for me to resolve those disputes in determining what costs order should be made.

30. [30]

    As set out above, the principles that are applied by the Court in considering what costs orders should be made in circumstances where, as here, there has not been a hearing on the merits, are well understood. The seminal decision in this regard is that of McHugh J in Re Minister for Immigration & Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622 at 624-5; [1997] HCA 6.

31. [31]

    The authorities were examined by Payne JA in Nichols v NFS Agribusiness Pty Limited [2018] 97 NSWLR 681; [2018] NSWCA 84 (Nichols) at [25]-[30], in the following terms:

32. [32]

    One of the authorities referred to by Payne JA in Nichols is Edwards Madigan Torzillo Briggs Pty Limited v Stack [2003] NSWCA 302 where Davies AJA (with whom Mason P and Meagher JA agreed) observed at [5]:

33. [33]

    In relation to the claim for indemnity costs, it is clear that the making of an indemnity costs order requires an exercise of discretion which must be exercised judicially. Sufficient reason should be given for the making of an indemnity costs order.

34. [34]

    Ordinarily, there must be some special or unusual feature or circumstance in the case justifying such an order. Such circumstances must concern the conduct of a party against whom it is made that relates to the proceedings themselves, that is, some "relevant delinquency" by the party as a litigant: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. Relevant delinquency can include, for example, unreasonable or blameworthy conduct. It is, generally accepted, however, that a court will not likely depart from the awarding of costs on an ordinary basis: see Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 at 370.

35. [35]

    One of the accepted circumstances in which indemnity costs may be ordered is where there has been unreasonable conduct in the proceedings which includes inordinate delay or conduct that unnecessarily prolongs the proceedings.

DETERMINATION

1. [36]

   In my view, the appropriate costs order in the present case is that there should be no order as to costs.

2. [37]

   Dealing first with the contention that the present matter may properly be described as a case of capitulation, I do not agree.

3. [38]

   Whilst it is clear that the orders agreed to by the defendant today correspond to final orders sought in the summons, I do not regard that fact, of itself, as establishing the necessary capitulation. Whether there has been a capitulation in the authorities depends upon the particular circumstances of the case.

4. [39]

   In the present case, it is clear that until at least a date in late November, or perhaps even 1 December 2025, the defendant (through its directors) was not aware of the existence of the AFL. Indeed, it would appear that it was not until 5 December, or thereabouts, that Mr Angius was, in fact, provided with, or saw, the AFL.

5. [40]

   Whilst I accept that the relief sought by Ice Box in the proceedings was relevantly urgent in relation to the affixing of the notice to the Property, I do not consider it was unreasonable that the defendant, having only recently resumed control through its directors, did not immediately agree to the final relief sought so as to obviate the need for the proceedings to be commenced.

6. [41]

   On the material before me, I do not regard the conduct of the defendant (through its directors) as being unreasonable from the time that the directors became aware of the AFL and the commencement of the proceedings.

7. [42]

   Mr Fernandes contends that the defendant (now back in the control of its directors) should have obtained advice once it became aware of the existence of the AFL and the need for urgency in relation to the affixing of the notice and, had it done so, would have been immediately advised that the AFL was obviously binding on the defendant such that the defendant should agree to be bound by the AFL. I do not accept this submission. On any view, the relevant period was approximately one week or, perhaps, just shy of two weeks. In circumstances where the receiver had been in place for a number of years and there was no mention in the orders made by McGrath J on 3 October 2025 that such an agreement for lease was to be entered into, I do not think that the defendant (through its directors) can be criticised for not immediately accepting that the AFL was binding so as to obviate the need for the proceedings.

8. [43]

   It is immediately apparent that when the proceedings were commenced, on the first return date on 12 December 2025, orders were made so as to deal with the immediately pressing issue of the affixation of the notice. What has occurred since then is, on the submissions made by Mr Angius, a consideration on his part, as one of two directors of the defendant, whether to agree to be bound by the AFL. This has ultimately reached the position, expressed today and as recorded in the resolution dated 9 March 2026, that the defendant company agrees to be bound by the AFL.

9. [44]

   I do not regard the circumstances of this case as properly characterised as a capitulation. It cannot be said that the defendant ought to have appreciated, prior to the commencement of proceedings, that the final relief sought by Ice Box should be made such that its present position amounts to an effective surrender. The more accurate description of the circumstances is that the proceedings were commenced urgently against a background in which the directors of the defendant had no knowledge of the underlying AFL. There then followed a period of consideration by the directors of the defendant resulting in the position expressed today. I do not regard the fact, if it be the case, that one of the directors of the defendant may have earlier or may have previously expressed the view that the company should agree to be bound by the AFL as overly determinative. It obviously requires both directors to agree for the company to take a position.

10. [45]

    In short, I am not satisfied that this is a case where the Court should depart from the usual position that where there has not been a hearing on the merits, the Court should make no order as to costs.

11. [46]

    I now turn briefly to the claim that the defendant engaged in unreasonable conduct so as to warrant an order for indemnity costs.

12. [47]

    I do not accept that the conduct of the defendant, through its directors, has been unreasonable to such an extent that it would be appropriate to make an order for indemnity costs. As I understand it, the principal matter focussed on by Mr Fernandes in support of the claim of unreasonable conduct in the conduct of the proceedings concerns the issues surrounding the authority of Mr Robert Angius to act on behalf of the defendant. It is apparent that there were a number of communications to Mr Shaw and Mr Robert Angius seeking to deal with the issue of representation. I also accept that it is not until today that the issue of representation has been finally dealt with by reason of the authority placed in Mr Robert Angius to represent the company today on the question of costs.

13. [48]

    The position is, however, that the proceedings were commenced urgently just prior to Christmas. There was one appearance where both parties were present on 12 December 2025 and orders were made by Slattery J. The proceedings were then stood over, effectively, to me last Friday and then today. As such, there have really only been two or three appearances, today being the only substantive one. Against the background of the considerable disputation between the directors of the defendant, I do not regard the circumstances leading up to the clarification of the position today as relevantly unreasonable so as to mean that an indemnity costs order should be visited upon the defendant in the present case.

14. [49]

    For these reasons the Court makes the following orders: