Malovini v Abdishou (No 2)

On 3 October 2025, I delivered judgment on an application by Ms Chantel Abdishou to restrain Mr Edgar Marcelo Robalino Rojas and the law firm which he is the principal solicitor of, Allsworth Lawyers Pty Ltd, from acting as the legal representatives for the plaintiff in these proceedings: Malovini v Abdishou [2025] NSWSC 1157 (Primary Judgment). These reasons assume familiarity with and maintain the same abbreviations used in the Primary Judgment. The applicant was wholly successful in her application and I made the order restraining the respondents from acting in these proceedings as sought. On the issue of costs, I made the following orders:

Pursuant to order 3, the applicant made an application by email to my Chambers to vary order 2 made on 3 October 2025, being the costs order I had made. A timetable for the filing and serving of submissions and evidence on the issue of costs was set.

The applicant provided written submissions in chief dated 24 October 2025 and written submissions in reply dated 1 December 2025 (AS and AS-Reply, respectively), together with an affidavit of Nathan Weinberger affirmed 24 October 2025 (Weinberger affidavit) (and Exhibit NW4X) and an affidavit of Nathan Weinberger affirmed 1 December 2025 (and Exhibit NW5X). The latter affidavit only attached correspondence relating to a short extension the Court granted in relation to the timetable for submissions and evidence for this costs dispute. The respondents provided written submissions dated 21 November 2025 (RS) together with an affidavit of Edgar Marcelo Robalino Rojas sworn 21 November 2025 (Rojas affidavit) (and Exhibit MR-4).

In relation to the evidence of the respondents, the applicant objected to the evidence given in the Rojas affidavit at [17]-[18] (AS-Reply [6(h)]), which was under the heading “The Applicant Caused Prejudicial Delay and Failed to Provide Particulars”. I have not made any ruling in relation to that evidence, however, I record that I have not given that evidence weight in determining any of the issues before the Court.

Having regard to the submissions made by the parties, and the further evidence filed in support of their respective cases, I have determined that the appropriate order is for the respondents to pay the applicant’s costs of the Motion on the ordinary basis, forthwith. My reasons for this determination are set out below.

The costs orders propounded by the applicant, at AS [10], were as follows:

For their part, the respondents submitted at the conclusion of RS that the Court should decline to make the costs orders sought by the applicant and the applicant’s costs of the Motion should remain the applicant’s costs in the cause.

Given the respective position of the parties, the issues before the Court are:

The legal principles to be applied when considering the issue of costs in interlocutory proceedings were set out by the Court of Appeal (Beazley, Giles, and Hodgson JJA) in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 (Metropolitan Petar) at [16]-[28]:

The principles set out in Metropolitan Petar were cited in State of New South Wales v Gevaux [2011] NSWSC 758 at [13]-[14] (Ward J), Rema Tip Top Asia Pacific Pty Ltd v Grüterich (No 2) [2018] NSWSC 899 at [8] (Robb J), Wang v Cai (No 2) [2021] NSWSC 1268 (Wang) at [62] (Ward CJ in Eq), and Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [2] (Richmond J).

The applicant contends that order 2, being an order for costs in the cause, ought to be set aside and in lieu thereof, it be ordered that the respondents pay the costs of the applicant, either on the ordinary or indemnity basis.

The primary contention of the applicant is that the circumstances of this matter are different from the “inter-partes” injunctions contemplated by cases such as Wang. She submitted the following in writing at AS [3], [7], [9]:

Having raised the issue that the respondents to the Motion are not parties to the substantive proceedings, the applicant raises associated issues which are said by her to go against the appropriateness of a “costs in the cause” costs order:

For their part, the respondents contended that the Court ought not depart from the current “costs in the cause” order, relying on the following factors:

In reply, the applicant referred to the submission of the respondents that the first defendant was acting on the instruction of the plaintiff, but notes, amongst other things, that solicitors are expected to independently form their own views as to their instructions, given the relevant professional conduct rules require them to not be “mere mouthpieces” of their clients (AS-Reply [6(b)]). The applicant also submitted at AS-Reply [6(c)-(g)] that in the circumstances, it was incumbent upon the respondents to get timely professional and independent advice relating to whether they should continue to act, especially as, according to the applicant, any instructions from the plaintiff to oppose the Motion would not have been made with a true understanding of the confidential information in issue (by reason of confidentiality undertakings between the applicant and respondents). The applicant submitted that the evidence in the Rojas affidavit at [10] which suggests advice from counsel was obtained by Mr Rojas should be viewed with circumspection, given the Court has no information as to what the advice was.

I accept the applicant’s submission that the appropriate order is an order for the respondents to pay the applicant’s costs of the Motion, and accordingly, I will order that the “costs in the cause” order be set aside.

I accept that the circumstances of this case can be distinguished from the majority of cases concerning interlocutory applications where “costs in the cause” orders were considered appropriate. In interlocutory applications where “costs in the cause” orders are appropriate, typically, the parties to the interlocutory proceedings are the same parties to the substantive proceedings.

Here, the respondents would not be participating whatsoever in the final hearing between the plaintiff and the applicant (and the other defendant). I accept that, as a consequence, a costs order for the Motion ought to finally determine the costs consequences of the respondents’ unsuccessful opposition here and now (AS [28]-[32]). The applicant relied on Uniform Civil Procedure Rules 2005 (NSW) r 42.1. Without wading for the moment into any debate about the general application of r 42.1 to interlocutory proceedings and whether there is in truth a “usual order” for costs in proceedings of this type as I suggested there was in the Primary Judgment at [90] (see In the matter of Arada Australia Pty Ltd (No 2) [2025] NSWSC 1293 (Brereton J)), it suffices to accept the applicant’s submission that as between the respondents and the applicants in this particular application, there will be “no further vindication of rights” as between the applicants and respondents, and there is no “cause” between the respondents and the applicant (AS [31], AS-Reply [7]). This is, in my opinion, decisive. Accordingly, costs ought to follow the event.

I am not sure that the applicant’s submissions at AS [4]-[6] ought to be accepted as accurately describing what a “costs in the cause” order in the Motion might entail for the plaintiff. I think there is force in the respondents’ submission at RS [9.5] that if the applicant did ultimately succeed in the proceedings, this would not necessarily mean the respondents could then seek their costs from the plaintiff. Similarly, if the plaintiff succeeds in the main proceedings, it is not clear he would be “reimbursed” for costs incurred by the respondents on the Motion, at least in the absence of evidence that the respondents billed the plaintiff for work on the Motion (as was acknowledged at AS [5]). However, if anything, the fact a “costs in the cause” order would potentially cause confusion or complication in the operation of any subsequent costs orders in relation to the proceedings as a whole is an additional factor that militates in favour of the applicant simply having costs ordered in her favour.

I also accept the applicant’s submissions that while the plaintiff may have instructed the respondents to oppose the Motion, the respondents also had their own ethical obligations to consider, and those instructions were made on incomplete information given the confidentiality undertakings between the parties, such that the plaintiff ought not be visited with any cost consequences referable to the Motion.

The legal principles to be applied when considering whether to make an order for costs on an indemnity basis were recently summarised in Muscat v Qin (No 2) [2024] NSWSC 391 by McGrath J at [25], which I referred to at [91] of the Primary Judgment and will reproduce here for convenience:

More recently, in In the matter of Sunny International Hardware Group Pty Ltd [2025] NSWSC 348, Black J stated at [8]:

In her submissions, the applicant set out the background to the Motion in considerable detail, including the correspondence between the parties, and relied on evidence included in the Weinberger affidavit. I do not propose to recount the detail of the background, however note that more generally the applicant relied on the findings of the Court in the Primary Judgment (AS [22]-[27]).

In making submissions in relation to indemnity costs, having regard to the relevant legal principles, the applicant relied on the submission that there were “special or unusual features” which make an indemnity costs order appropriate, which include:

The respondents submit that their conduct in opposing the Motion does not warrant the ordering of indemnity costs, as their conduct was not “delinquent” or “unreasonable” as set out in Capello, in circumstances where:

The applicant submits that even if the Court accepts that the first respondent may have believed opposing the Motion was reasonable, that does not mean the Court should conclude that the belief was objectively reasonable (AS-Reply [5]).

Whilst I accept there are aspects of the respondents’ conduct as described by the applicant in her submissions that tends in the direction of unreasonableness, on balance, I am of the view that the conduct does not rise to the level of a relevant delinquency or unreasonableness to justify making an order for indemnity costs. Certainly, the Motion was vigorously opposed. However, I do not believe that the circumstances are exceptional such as to justify the making of the primary order sought.

For this reason, in the exercise of my discretion I propose to make an order for the payment of costs on the ordinary basis. I note that an order for costs on the ordinary basis was sought in the alternative by the applicant.

Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) empowers the Court to order that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs.

The principles governing when a gross sum costs order were summarised by Beazley JA (with whom Giles and Whealy JJA agreed) in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]. A succinct summary of what her Honour said was provided in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] (Bell CJ, Kirk and Adamson JJA), where their Honours said, citing Hamod:

In Rahman v Rahman (No 2) [2025] NSWCA 266 at [61]-[64], the Court of Appeal (Payne, McHugh and Free JJA), stated the following:

On the issue of evidence, in Baychek v Baychek [2010] NSWSC 987 (Baychek) at [11], Ball J stated (citations omitted):

Baychek was more recently cited in In the matter of Mosman & Co Pty Limited [2020] NSWSC 1245 at [13] (Rees J) and Pirovic v Barbieri [2021] NSWSC 1460 at [23] (Sackar J).

On the issue of the exercise of discretion, Peden J stated in The Owners – Strata Plan 93105 v Richard Crookes Constructions Pty Ltd [2025] NSWSC 935 at [14]:

The applicant submits that, having regard to the relevant legal principles (AS [37]-[38]), the conduct of the respondents justifies the making of a gross sum costs order. In this, the applicant refers to the “extraordinary expense” she has incurred to obtain the restraint and “protect her confidential information”. The applicant also submitted that she requires the costs to fund the proceedings and should not be required to wait for a lengthy costs assessment process (AS [39]).

In making this submission, the applicant relies on the detailed Weinberger affidavit which sets out the total legal costs that the applicant has incurred and associated invoices and other relevant supporting documentation. Submissions in relation to the various rates charged and their reasonableness are made by reference to the Costs Assessment Rules Committee Guidelines dated 23 October 2023, of which the relevant parts are extracted in the Weinberger affidavit (at [51]).

The total sums invoiced on the Motion are $111,645.21 exclusive of GST, being $122,733.94 inclusive of GST (Weinberger affidavit at [62]). In terms of the amounts ultimately sought by the applicant however, $104,119.41 plus GST (being $114,531.35) is sought if an order is to be made on the indemnity basis, and $84,690.95 plus GST (being $93,160.05) if made on the ordinary basis (AS [46(c)]). The basis of these final sums is set out in the Weinberger affidavit ([52]-[66], particularly [65]-[66]).

The respondents oppose the making of a gross sum costs order. Their submissions in opposition to such an order, as contained in RS [12]-[20], can be summarised as follows:

In relation to the claim by the respondents in relation to the opportunity to obtain a costs assessment, the applicant replied as follows (AS-Reply [2]-[3]):

I have had regard to the legal principles relevant to the exercise of my discretion to award a gross sum costs order, as set out above, and do not propose to make such an order. The decision was finely balanced however, overall, I have come to the view that the making of the order sought would result in unfairness between the parties.

First, on the one hand, I accept that the detail of the evidence contained in the Weinberger affidavit remains unchallenged, in the sense that the respondents, for whatever reason, have ultimately elected not to retain a costs assessor and put on evidence in reply to the Weinberger affidavit.

The evidence is still challenged, however, in that the respondents have submitted that the costs claimed for the Motion are disproportionate to the interlocutory proceedings. (I pause here to point out that the respondents say the applicant’s “costs claimed are $122,000” (RS [20]). This is not the case, noting that the costs “claimed” are $114,531.35 (on the indemnity basis) or $93,160.05 (on the ordinary basis) (AS [46(c)])).

I do accept however, that in circumstances where the applicant’s costs are of the magnitude claimed, which I consider towards the high end of the range for an interlocutory proceeding of the nature of this case, I do not believe I am able make a proper (even if broad brush) assessment and consider that a specialist costs assessor will be in a better position to assess costs.

In taking this approach, I am not suggesting that the costs claimed by the applicant will not be recoverable, and do not want to be taken to be making any finding or otherwise suggesting that the costs incurred by the applicant have not been reasonably and properly incurred. No such finding is being made nor preliminary view articulated. My decision not to make an order is because I do not have confidence that I am able to arrive at the appropriate sum and that an estimation would be fair, logical and reasonable.

Second, whilst the parties have not raised this, one factor I may have regard to is whether the unsuccessful party can satisfy any costs liability. There has been no suggestion that the respondents are not able to do this, and so I consider this is not a consideration that would militate in favour of making a gross sum costs order.

Third, given the evidence of the applicant in this costs dispute, it is clear that a significant level of preparation has already occurred to enable the likely prompt commencement of the cost assessment process. In considering this issue, I have also had regard to the evidence of the applicant in relation to the respondents also having had the opportunity to prepare. This evidence is the correspondence from the respondents referring to their own preparation for the costs assessment process (see [39] above). In this, the respondents will not be in a position to complain they have not had the opportunity to prepare and make submissions, ensuring fairness in the process and outcome.

Fourth, I am of the view that the nature of the interlocutory proceedings and substantive proceedings are reasonably distinguishable, and that the issues involved in the interlocutory proceedings are reasonably clear and discrete. For this reason, I do not believe that any assessment of costs would be protracted and expensive.

Finally, I accept the submission by the respondents that a costs assessment process ought not delay the substantive proceedings. I acknowledge that the applicant has raised impecuniosity as one of the reasons underpinning the application for a gross sum costs order. Without finally deciding whether I could permissibly take this last mentioned factor into account, noting the respondents’ submission suggesting I could not, I consider that in any event, this factor is not significant or material in my opinion. It is the other considerations discussed above which were material to my decision, and so even if I can and should take into account the applicant’s impecuniosity, doing so does not change my opinion that a gross sum costs order should not be made in the circumstances of the Motion.

In Keane v Keane [2025] NSWSC 1298 at [78]-[79], I recently summarised the applicable principles as to when, in an interlocutory application, costs may be ordered as payable forthwith. For convenience, I shall reproduce that summary below:

The applicant made the following submissions in support of an order that the respondents pay her costs of the Motion forthwith:

On the issue of whether any costs ordered ought to be paid forthwith, the respondents made the following submission (RS [21]):

Having regard to the circumstances of this case, together with the submissions made by parties, for the following reasons I consider it is appropriate to order that the costs of the applicant be payable forthwith.

First, I am of the view that the circumstances of this case come within the principle that costs may be payable forthwith where “the application … represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect”. The issue in dispute here, whether the respondents ought to have been restrained from acting in these proceedings, is clearly discrete and separate from the substantive proceedings. This conclusion is supported by the fact that the respondents are not parties to the substantive proceedings.

Second, I accept the submissions of the applicant that I have been provided with no reason that the costs ought not to be paid forthwith.

Third, the respondents did not otherwise contest an order that the costs of the Motion be payable forthwith. Their only submission on this issue relates to what the Court should do if a gross sum costs order was made, which has not occurred.

For the reasons set out above, the Court makes the following orders: