PA v TR (No 2)

1. [1]

   On 10 March 2026, following a contested hearing, I made freezing orders against property owned by PS. My reasons for so doing are published as PA v TR [2026] NSWSC 221 (“Judgment”). That judgment also contains a brief history of the matter and the relevant facts, and I will not repeat myself, save as to say, insofar as PS was concerned, the contested issues were about the ambit of a Mareva injunction and the extension of a suppression order benefiting PA to cover PS. I held this was necessary to protect the identity of PA.

2. [2]

   On the same day, I made orders for PA and PS to make submissions to as the appropriate costs order in respect of the costed freezing order, to be dealt with in Chambers. That is the subject of this judgment.

Submissions

1. [3]

   PS submits that she obtained practical success. First, the freezing order as originally made was varied, and secondly, a suppression order was made over her identity, both contested outcomes. She submits, in accordance with rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that it follows that her costs are payable by PA. As the varied freezing order was no less favourable to PS than the terms of an open offer made to PA prior to the hearing, PS seeks these costs on an indemnity basis by analogy with UCPR 42.15A. There were also arguments advanced about “unreasonableness” and “delinquency”. PS also points out that she is a stranger to the principal proceedings and her costs not unreasonably incurred are recoverable on an indemnity basis (citations omitted).

2. [4]

   PA, by contrast, says she has succeeded on the motion. PS had argued the freezing order against her assets should be dissolved in its entirety. PA points to her success in having the freezing order continued, albeit in a reduced amount, which was the nub of the application. PA seeks an order that PS pay her costs as agreed or assessed.

Suppression Order

1. [5]

   Insofar as PS relies upon her success in obtaining a suppression order, I reject that argument. The language of section 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) is the language of necessity. Given the statutory, and automatic, protection of PA’s identity by force of section 578A of the Crimes Act 1900 (NSW) and section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), for the reasons I gave suppression of PS’s identity was necessary to avoid circumvention of these statutory protections. I rejected PS’s argument advanced on other grounds. I acknowledge that by the time of the hearing, there was little resistance to the suppression order being made. This matter is of little relevance to the costs question.

Freezing Orders

1. [6]

   I accept PA’s contention that technically speaking, PS did not actually make any application. Instead, she appeared to oppose PA’s applications to extend the freezing order. The interim freezing orders concerned both properties referred to as the St Leonards Property and the Green Point Property respectively. The freezing order as varied concerns only the St Leonard’s Property. To that extent then each of PA and PS might be said to have enjoyed the same measure of success.

2. [7]

   However, on 12 February 2026, PS’s solicitors wrote to PA’s solicitors offering to consent to extending the freezing order but in relation to the St Leonard’s Property only, with each party to bear her own costs. PA rejected that offer.

3. [8]

   PA characterises the continuation of the freezing orders by me on 16 February as a vindication of this refusal. I do not agree. My orders on 16 February were not in any way determinative (on a merits basis) of the application for a freezing order. I continued the freezing order for the prevention of prejudice until a determination was to occur. Moreover, the adjournment was necessitated by the question about service on and representation of the defendant/ first respondent, TR. There is no reason to treat the outcome that day as a separate “event”.

4. [9]

   The offer in that letter lapsed on 16 February, but subsequently correspondence before the March hearing referred to it as still being open. Whether it was or was not is a matter of technicality which does not actually bear upon a determination of this issue. An undertaking in relation to the St Leonards property was also offered, in the alternative, on 16 February and again on 6 March by PS through her counsel (11.05-11T; 06/03/26). In terms, the undertaking suggested was less advantageous to PA than the limited order offered. I accept, however, that the ordered outcome after the contested hearing was no less favourable than the open offer.

Indemnity Costs

1. [10]

   PS argued not only should she have her costs but also that costs should be payable on the indemnity basis. First, the original freezing order was made by referring the learned judge to overruled authority (being the first instance jury award overturned on appeal in Footscray Football Club Ltd v Kneale (2004) 77 VR 168; [2024] VSCA 31). Secondly, the refusal to accept the offers and undertakings referred to above. Thirdly, PS is not a party to proceedings, and indemnity costs orders are often more appropriate in such cases. Finally, it was unreasonable to attempt, at all times, to maintain the original, expansive order.

2. [11]

   The reference to erroneous authority in the list of authorities was regrettable. However, I am not prepared to find that it was delinquent or in bad faith, or indeed material. The decision was one of a number of authorities proffered. It was an error that may have influenced his Honour’s provisional, impressionistic decision. But no more than that.

3. [12]

   Secondly, the 12 February offer is not an offer of compromise under UCPR 20.26 as it made provision for costs by specifying each party bear her own and did not contain a statement that it was made in accordance with UCPR Pt 20. No submission was made that I should treat it as an offer in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333. I acknowledge, however, that the letter concluded with the following statement:

4. [13]

   Thirdly, as I have said, there is no general or universal rule which binds me to make an order for indemnity costs in cases of freezing orders against a third party, unless I am satisfied that the interests of justice warrant such an order being made: Sebastian v Strongwall International Limited (Deregistered) (No 2) [2011] FCA 1105 at [4] (McKerracher J). Absent the 12 February offer, in circumstances where PS strongly sought to maintain that no freezing order at all should be made against any of her assets, and retained senior and junior counsel instructed by experienced solicitors for the purpose, the order I made in the event would have presumptively engaged the usual rule that costs follow the event. In this regard, PA’s refusal to accept the offer as not unreasonable.

5. [14]

   Finally, while I have varied the “blanket injunction”, I do not consider that PA agitating for an order covering both properties was so unreasonable as to attract an indemnity costs order. A portion of the funds used in the purchase of that property were ultimately sourced from bank accounts in the name of TR. PS’s evidence did not dispute this, rather she deposed that such funds were in part repayment of a loan from PS to TR. She was not cross-examined and I regarded her evidence as credible in the circumstances. I do not think the PA’s position was wholly unreasonable.

6. [15]

   As I have said (at [6] above), having regard to the battlelines drawn each of PA and PS have enjoyed a measure of success. For the reasons rehearsed, I am not satisfied PS has demonstrated an entitlement to indemnity costs, as a matter of discretion. I am of the view that the interests of justice are satisfied by each party bearing her own costs.

7. [16]

   The question as to whether costs should be payable forthwith does not arise.

Orders

1. [17]

   I make no order as to costs to the intent that each party bear her own costs of the freezing order application between PA and PS.