Impact Property Consultancy Pty Ltd v Windlock Pty Ltd

On 28 November 2025, Rees J heard and determined a summary judgment application filed by the Plaintiff in these proceedings. That application was brought in relation to a claim pursued by the Plaintiff against the Defendant in an amount of $111,338.26.

Prior to her Honour hearing that motion, the Plaintiff had served a Creditor’s Statutory Demand on the Defendant, on 28 March 2025, in relation to the same claim. The Defendant, by its solicitors’ letter dated 3 April 2025, invited the Plaintiff to withdraw that Statutory Demand. It did not. In consequence, the Defendant, on 16 April 2025, filed an Originating Process in this Court seeking to set aside the Statutory Demand based upon an affidavit in support of Mr Tommaso Folino Gallo sworn on 16 April 2026.

On 6 May 2025 the Plaintiff’s solicitors “unequivocally and unconditionally” withdrew the Statutory Demand. Shortly thereafter Registrar Walton, on 13 May 2025, made orders confirming the discontinuance of the Statutory Demand proceedings with an order that the Plaintiff pay the Defendant’s costs as agreed or assessed.

On 16 June 2025, the Plaintiff commenced these proceedings by filing its Statement of Claim in the District Court. Four days thereafter it filed its summary judgment application. The proceedings were transferred to this Court on 25 September 2025. The summary judgment application was ultimately heard by Rees J on 28 November 2025. At the hearing, the Plaintiff withdrew its application and her Honour accordingly ordered that it be dismissed and that the Plaintiff pay the Defendant’s costs of the motion. It is that costs order which is the subject of this application by the Defendant. By Notice of Motion filed on 31 March 2026, the Defendant seeks the following orders:

Rule 42.7 provides as follows:

Paragraph 60 of Practice Note SC Eq 3 provides that, unless otherwise ordered, a party in whose favour an order for costs is made may proceed to assessment of such costs forthwith. Insofar as the Plaintiff did not seek before Rees J that the Court order otherwise, the Defendant contends, correctly, that it is now entitled to have its costs assessed.

Ms Castle of Counsel accepted that no application was made before Rees J on 28 November 2025 for an order that the Defendant’s costs be payable forthwith. The Plaintiff seizes upon that omission as the principal basis to oppose the order now being sought. In answer, the Defendant advances and relies upon two arguments:

These principles are extracted from the judgments of Bathurst CJ (with whom McColl JA and Bergin CJ in Eq agreed) in Showtime Touring Group Pty Ltd v Mosley Touring Inc [2013] NSWCA 53; 296 ALR 597 at 605 [29] and, more recently, Stevenson J in Stockco Agricapital Pty Ltd v Chalmers [2023] NSWSC 818, both cases being examples where a costs order was made and then an order that costs be payable forthwith was made subsequently.

The principles which inform the exercise of discretion as to whether to make such an order have been recently addressed by Peden J in Max Build Pty Ltd v The Owners – Strata Plan No 54026 (No 3) [2025] NSWSC 1531 (Max Build) at [33], where her Honour observed:

In an earlier judgment of Priestley JA in Horrobin v Australia & New Zealand Banking Group Ltd (Court of Appeal (NSW), 6 June 1997, unrep), his Honour stated that:

I am satisfied that the “proceedings” giving rise to the order, namely the motion heard by Rees J, is sufficiently self-contained and discrete from the main proceedings yet to be heard. The Plaintiff elected to bring a summary judgment application. That application was dismissed by her Honour, and the subject matter of the application will not intersect with the balance of these proceedings. I do not understand the Plaintiff to suggest otherwise.

In relation to the element of “unreasonable conduct”, the Defendant relies upon the decision of Parker J in Ashwood v Ashwood [2023] NSWSC 208 at [95], where his Honour observed that unreasonable conduct is not a necessary precondition for a ‘forthwith order’ being made. Moreover, as noted in the excerpt of Max Build above, unreasonable conduct does not require an abuse of process or misconduct. The Defendant contends that the Plaintiff’s conduct in pursuing a summary judgment application, which carries a high bar for an applicant to succeed, was unreasonable. This is because the Defendant’s solicitors had already, on two prior occasions, sought to inform the Plaintiff of the difficulties with, first, its Statutory Demand and, secondly, its summary judgment application brought four days after it filed its Statement of Claim. The Defendant also relies heavily on comments that fell from Rees J after the Plaintiff withdrew its application. The transcript, which is in evidence, records her Honour telling the Plaintiff’s Counsel that the motion was “pretty much doomed to fail”: Tcpt, 28 November 2025, p 10(10).

It can be said, perhaps with the benefit of hindsight, that pursuing a summary judgment application brought four days after filing a Statement of Claim was, in the least, adventurous, particularly in circumstances where the Defendant’s solicitors had taken steps to persuade the Plaintiff to refrain taking such a peremptory approach. I consider, in all the circumstances, that I am permitted to take into consideration, in assessing the present application, whether the Plaintiff’s conduct should be characterised as “misconduct”, imprudent or otherwise.

Another element to consider is the timing of this application in the overall timeline of these proceedings. Mr Bova SC, who appeared for the Plaintiff, submitted that the case has progressed towards final hearing since 28 November 2025 and is ready to be fixed for hearing. I was advised by Counsel that the hearing, including a Cross-Claim filed by the Defendant, could take up to five days. With such an estimate, it would be unlikely that the matter could be heard and determined until much later this year, if not beyond. It is open to me to conclude that the finalisation of these proceedings is “likely some way off”: Max Build at [33].

A large measure of the Plaintiff’s written and oral submissions concerned the failure of the Defendant to press for these orders before Rees J. Mr Bova SC submitted at the hearing before me that the question of reasonableness was one for her Honour to determine, and the Defendant did not bring an application for indemnity costs. However, it did bring such an application, albeit not one brought based on the Plaintiff’s conduct. At the hearing before Rees J (at which, in fairness, Mr Bova SC did not appear), Senior Counsel for the Defendant sought that its costs be paid on an indemnity basis from 25 July 2025 onwards: Tcpt, 28 November 2025, p 9(25). Her Honour refused that application. In any event, the Plaintiff submits that the Defendant did not trouble her Honour with the argument now being pressed before a different judge. This is certainly a factor that I take into consideration in the exercise of my discretion, although I do not consider it to be dispositive particularly in light of the authorities, set out above, which allow for a ‘forthwith order’ application to be made subsequently, even by a different judge.

Mr Bova SC also submitted that there was no relevant “misconduct” because a solicitor of this Court thought it was reasonable to bring the application at the time, even though Rees J disagreed. Moreover, the Plaintiff submits that in circumstances where this case will be concluded within a very short period of time, involving a very small amount of money, I must be driven to the conclusion that the ‘demands of justice’ do not require a payment of costs to be made in the meantime.

I do not agree. Having consider these matters, I persuaded to make the ‘forthwith’ order sought by the Defendant. I do so for the following reasons.

First, for the reasons I have set forth above, I consider that the summary judgment application heard by Rees J is discrete and will not intersect with the balance of the proceedings.

Secondly, I am not persuaded by the Plaintiff that the hearing of this matter is imminent, even if it is to be set down for hearing shortly. The estimates for the proceedings range from between three and five days. In the present litigation cycle it is unlikely that these proceedings will be determined until the end of this year or even later.

Thirdly, although I do not make a finding of “misconduct”, I am satisfied that pursuing a summary judgment application four days after filing a Statement of Claim and pressing the application, in the teeth of a reasonable basis for such an application to be withdrawn (as it ultimately was), is a matter that informs the exercise of my discretion in favour of a ‘forthwith’ order. I am certainly not prepared to depart from her Honour’s observation that the application was “doomed to fail”.

For these reasons, I consider that the interests of justice favour the making of the orders sought by the Defendant.

I make the following orders: