J.J. HAWKINS AND CO PTY LTD -v- INTERNATIONAL RAW MATERIALS PTY LTD [No 2] [2026] WASC 80 (S)

[2026] WASC 80 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : J.J. HAWKINS AND CO PTY LTD -v- INTERNATIONAL RAW MATERIALS PTY LTD [No 2] [2026] WASC 80 (S) CORAM : LUNDBERG J HEARD : ON THE PAPERS DELIVERED : 20 JULY 2026 FILE NO/S : CIV 1088 of 2017 BETWEEN : J.J. HAWKINS AND CO PTY LTD Plaintiff AND INTERNATIONAL RAW MATERIALS PTY LTD Defendant Catchwords: Costs - Appropriate costs orders to be made following judgment for the plaintiff at trial - Whether indemnity costs should be awarded to plaintiff on the basis of non-acceptance of Calderbank offers - Alternatively, whether special costs orders should be made in favour of the plaintiff - Turns on own facts Legislation: Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2016, 2018, 2020, 2022 and 2024 (WA) Legal Profession Act 2008 (WA), s 280 Legal Profession Uniform Law Application Act 2022 (WA), s 141 -- 1 of 31 -- [2026] WASC 80 (S) Page 2 Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 1 Supreme Court Act 1935 (WA), s 37 Result: Costs orders made as set out in these reasons. Category: B Representation: Counsel: Plaintiff : No Appearance Defendant : No Appearance Solicitors: Plaintiff : Sonia Edwards Legal Defendant : Bennett Case(s) referred to in decision(s): Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 Currie v Currie [No 3] [2018] WASC 306 Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 (S); (2003) 28 WAR 95 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Frigger v Lean [2012] WASCA 66 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 J.J. Hawkins and Co Pty Ltd v International Raw Materials Pty Ltd [No 2] [2026] WASC 80 Jones v Bradley (No 2) [2003] NSWCA 258 Latoudis v Casey (1990) 170 CLR 534 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 19] [2025] WASC 234 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Rayney v Roberts [2022] WASC 360 (S) Rodwell v Hutchinson [2010] WASCA 197 -- 2 of 31 -- [2026] WASC 80 (S) Page 3 Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S) SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 -- 3 of 31 -- [2026] WASC 80 (S) Page 4 Table of Contents Introduction ................................................................................................................................ 5 Materials before the court ........................................................................................................... 5 Costs issues agreed or not in dispute .......................................................................................... 6 Form of the costs order in favour of the plaintiff .............................................................. 6 Reserved costs ................................................................................................................... 7 Costs of two counsel ......................................................................................................... 7 Costs issues in dispute ................................................................................................................ 8 The outcome at trial .................................................................................................................... 8 Relevant principles concerning costs ......................................................................................... 9 The costs discretion ........................................................................................................... 9 Indemnity costs ............................................................................................................... 10 Calderbank offers............................................................................................................ 11 Special costs orders ......................................................................................................... 13 Whether an indemnity costs order should be made? ................................................................ 15 The plaintiff's position .................................................................................................... 15 The First Offer ....................................................................................................... 15 The Second Offer ................................................................................................... 16 The defendant's position.................................................................................................. 17 Disposition ...................................................................................................................... 19 Whether special costs orders should be made? ........................................................................ 22 The plaintiff's position .................................................................................................... 22 The defendant's position.................................................................................................. 24 Disposition ...................................................................................................................... 24 Conclusion and orders .............................................................................................................. 28 ATTACHMENT A The plaintiff's amended proposed costs orders ........................................ 30 -- 4 of 31 -- [2026] WASC 80 (S) Page 5 LUNDBERG J: Introduction 1 These reasons concern the costs orders which should now be made following judgment delivery, the court having published its reasons on 25 March 2026.1 2 As explained in those earlier reasons, the court upheld most of the contractual claims pleaded by the plaintiff lessor, arising under the Varied Lease2 which was in place with the defendant lessee. The court rejected the corresponding defences pleaded by the defendants, as well as the defendant's counterclaim. 3 The plaintiff's claim in tort was dismissed. 4 The plaintiff presses for an indemnity costs orders, arising from the non-acceptance of certain offers of settlement, alternatively it seeks special costs orders. Orders were made for these costs issues to be determined by the court on the papers, following the filing of submissions and affidavit material. Having considered the materials filed by the parties, the orders I will make are set out at the conclusion of these reasons. Materials before the court 5 The court received submissions from the plaintiff dated 30 April 2026 (PS), an affidavit sworn by the plaintiff's solicitor (Ms Sonia Edwards) on 30 April 2026 in support of the plaintiff's proposed costs orders (Edwards Affidavit), and the plaintiff's minute of proposed orders dated 30 April 2026, which was subsequently amended and filed with the Court on 21 May 2026 (see Folio 251). The orders sought by the plaintiff are set out in Attachment A to these reasons. 6 The court also received the defendant's submissions dated 14 May 2026 (DS), and a brief set of responsive submissions from the plaintiff dated 21 May 2026 (PS Reply). 7 The Edwards Affidavit was received by the court without objection. Within the affidavit, Ms Edwards deposed to the total costs incurred by the plaintiff in the proceedings. Ms Edwards also annexed and described the settlement offers which were made by the plaintiff on a without 1 J.J. Hawkins and Co Pty Ltd v International Raw Materials Pty Ltd [No 2] [2026] WASC 80 (Judgment). 2 Where appropriate, I will employ the defined terms from the Judgment in these reasons. -- 5 of 31 -- [2026] WASC 80 (S) Page 6 prejudice save as to costs basis (Annexures SE-1 and SE-2), and included a draft bill of costs (Annexure SE-3). 8 The Edwards Affidavit sets out the total costs incurred by the plaintiff in prosecuting the action, being $1,261,775.81 (including GST).3 The costs are set out in the table below: Provider Amount (incl. GST) Edwards Mac Scovell (former solicitors) $231,051.27 Sonia Edwards Legal (current solicitors) $642,438.89 Dr Johannes Schoombee (counsel) $243,355.40 Mr Tom Langdon (counsel) $133,581.00 Disbursements (not in solicitor accounts) $11,349.25 TOTAL $1,261,775.81 Costs issues agreed or not in dispute 9 There are two broad issues which were either agreed or not in dispute. Form of the costs order in favour of the plaintiff 10 The first issue concerns the costs order which should be made in favour of the plaintiff given its success at trial. The plaintiff seeks an order that the defendant pay 95% of the plaintiff's costs of the action, including the counterclaim, to be taxed, if not agreed. 11 The defendant did not oppose this order.4 12 In my view, the formulation of the order advanced by the plaintiff is appropriate and reflects the degree of success of the plaintiff at trial. I will make the order sought by the plaintiff. 3 Edwards Affidavit [7]. 4 DS [1]. -- 6 of 31 -- [2026] WASC 80 (S) Page 7 Reserved costs 13 The second issue is whether certain reserved costs should be awarded to the plaintiff and whether an allowance should be made for the costs of two counsel. 14 The plaintiff seeks an order that its costs entitlement include certain reserved costs, namely: (a) the costs reserved by the order made on 15 March 2019 (being a case management conference); (b) the costs reserved by the order made on 12 April 2019 (relating to certain consent orders); (c) the costs reserved by the order made on 4 March 2020 (being a case management conference); and (d) the costs reserved by the order made on 1 May 2024 (being day 11 of the trial). 15 The defendant did not oppose the orders proposed at (a), (b) and (c) above, but opposed the inclusion of the costs which were reserved on 1 May 2024 (set out at (d) above).5 16 In response, the plaintiff conceded there should be no order made as to the costs of day 11 of the trial, being the attendance on 1 May 2024.6 That concession was appropriately made, in my view. 17 I will therefore make a costs order to the effect that the plaintiff's costs include the reserved costs at (a), (b) and (c) as described at [14] above. Costs of two counsel 18 Further, the plaintiff sought an order for an allowance for the attendance of two counsel at trial. The defendant did not address this order in its submissions. In my view, the order is appropriate, having regard to the submissions advanced by the plaintiff.7 In particular, the court recognises that a small law practice with limited resources will often need to engage a second counsel for a complex action such as this, 5 DS [1] and [2]. 6 PS Reply [2] and plaintiff's amended minute of proposed orders dated 21 May 2024. 7 PS [17]. -- 7 of 31 -- [2026] WASC 80 (S) Page 8 and I accept from my own observations there were benefits gained through the work performed by the second counsel in this action. 19 I will make the order sought by the plaintiff. Costs issues in dispute 20 The issues which are in dispute and require determination by the court as are as follows. 21 First, whether the costs awarded to the plaintiff should be assessed on an indemnity basis having regard to the defendant's non-acceptance of settlement offers made by the plaintiff in December 2020 and February 2024. 22 Second, in the alternative to indemnity costs, whether the costs awarded to the plaintiff should be assessed without regard to certain of the limits imposed under the relevant cost determinations made under the Legal Profession Act 2008 (WA) (the LPA) and the Legal Profession Uniform Law Application Act 2022 (WA) (the Uniform Law), by reason of the unusual difficulty, complexity or importance of the matter. 23 Before I address these issues, it is convenient to summarise the outcome at the trial and identify the relevant principles which the court must apply in resolving these issues. The outcome at trial 24 The court's conclusions are summarised at [1128] - [1134] of the Judgment. For convenience, the summary is repeated below. 25 First, the court upheld the plaintiff's contractual claims against the defendant for breaches of cl 3.9(a) of the Varied Lease in respect of the damage to the Warehouse, breach of cl 3.23 of the Varied Lease in respect of the failure to yield up the premises in good and substantial repair and condition, and breach of cl 3.23 of the Varied Lease in respect of the failure to repair the access holes made in the internal walls to the Units. 26 Second, as to the contractual claims on which the plaintiff succeeded, court assessed the plaintiff's claim for damages as follows. 27 As to the plaintiff's claim for damages quantified by reference to the rectification costs for Units 1, 2 and 3, this was assessed, after considering the plaintiff's failure to mitigate, in the sum of $2,662,894.39 -- 8 of 31 -- [2026] WASC 80 (S) Page 9 (exclusive of GST). As to the plaintiff's claim for loss of rent under the Varied Lease during the rectification works, this was assessed as $173,902.32 (exclusive of GST). As to the plaintiff's claim for loss of the payment of outgoings during the rectification works, this was assessed as $48,628.67 (exclusive of GST). 28 However, the plaintiff's claim for the cost of the urgent interim repair works undertaken by the plaintiff in 2018 and 2019 was not allowed. 29 Third, the court found the plaintiff had not established the breaches of cl 3.17 and cl 5.3(e) of the Varied Lease, arising from the non-renewal of the insurance cover for the Warehouse, or the breaches of cl 3.10(a), cl 3.10(b), cl 3.15(a) and cl 5.23 of the Varied Lease, concerning the alleged contravention of s 56 of the EP Act. 30 Fourth, the plaintiff's contractual claim for outstanding rent owed by the defendant, in respect of the breach of cl 3.1 of the Varied Lease was upheld and assessed in the amount of $494,416.21 (exclusive of GST), upon which interest is payable as claimed by the plaintiff. 31 Fifth, the plaintiff's claim in tort was not established and was dismissed. 32 Sixth, the defendant's counterclaim in contract for damages for breaches of the Varied Lease was dismissed. Relevant principles concerning costs 33 I have set out below the principles which I consider are applicable to the exercise of the cost's discretion in a matter such as the present. The costs discretion 34 It is trite that the court has a wide discretion to award costs.8 The discretion regarding costs has been described as 'absolute, unconfined or unfettered, although a discretion that must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation'.9 35 Without limiting the court's general discretion, the court will generally order that the successful party to any action or matter recover 8 Supreme Court Act 1935 (WA), s 37. 9 Frigger v Lean [2012] WASCA 66 [53]. -- 9 of 31 -- [2026] WASC 80 (S) Page 10 his costs.10 That is, costs will generally abide the event. Costs generally follow the event because such an order is intended, at least to the extent that the costs incurred were not unreasonable or unreasonably incurred, as compensation (and vindication) for the successful action.11 Importantly, an order for the payment of costs by one party is compensatory in nature, not for the purpose of punishment. 36 The central and overriding principle in assessing costs is that of doing substantial justice to the parties in each case, there being 'no better test than the test of what is fair and just between the parties'.12 Indemnity costs 37 Ordinarily an indemnity costs order is appropriate only where the unsuccessful party has been involved in some unreasonable conduct in relation to the proceedings, such as where the institution or continuation of the proceeding was plainly unreasonable or the proceeding was issued or maintained for an ulterior or collateral purpose. An order for indemnity costs reflects the court's disapproval of the conduct of the unsuccessful party.13 38 Indemnity costs may also be awarded on the basis that the unsuccessful party has rejected, or not accepted, a settlement offer during the course of the proceedings. I will return to that basis for awarding indemnity costs in due course. 39 Within its submissions, the plaintiff recognised the principle that, if a properly formulated special costs order is made, there should be little need for an indemnity costs order to recover costs incurred above the applicable legal costs determinations. The plaintiff referred to the observations of Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor in this regard.14 40 Nonetheless, the plaintiff submitted there is an important distinction between an indemnity costs order and a general party and party costs order, even with special costs, in relation to the inquiry made as to costs at a taxation. In particular, the plaintiff observed that, on a party and 10 Rules of the Supreme Court 1971 (WA) (RSC), O 66 r 1(1). 11 Latoudis v Casey (1990) 170 CLR 534; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [30] - [31]. 12 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 [5] as cited in G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) (Dal Pont) at [6.15]. 13 Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 [82]. 14 Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 (S); (2003) 28 WAR 95 [24] (Pullin J, as his Honour then was). -- 10 of 31 -- [2026] WASC 80 (S) Page 11 party taxation, the issue is whether the sum claimed is a reasonable amount for necessary work (generally by reference to the applicable limits in the scale determination). However, the usual order for indemnity costs is that the paying party pay all of the costs of the claiming party except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the claiming party is completely indemnified for its costs. 41 Accordingly, the plaintiff submitted, an indemnity costs order may allow recovery of costs under a costs agreement which is likely to permit higher charges than under a scale determination (both as to hourly rates being higher and there being no ceiling on specific items of work). On a taxation on an indemnity basis, the effect of the order is that the amount will be allowed unless the taxing officer is satisfied that it was unreasonably incurred or of an unreasonable amount. 42 I accept these distinctions exist. 43 I also accept that a properly crafted special costs order will not obviate the need for an indemnity costs order in this matter (if one is otherwise applicable). That is because the plaintiff is seeking indemnity costs on the basis of an unreasonable rejection of a Calderbank offer. The Court of Appeal has recognised that this is an example of a situation in which indemnity costs may be appropriate, but special costs may not.15 Calderbank offers 44 One basis for exercising the discretion to award indemnity costs is the rejection of an offer made in accordance with Calderbank v Calderbank.16 A Calderbank offer is an offer to settle proceedings made on the basis that, if it is not accepted and the offeree does not receive at trial a judgment which is more favourable than the offer, the offer will be relied on by the offeror on the question of costs.17 45 Such offers may legitimately be made notwithstanding the express procedure provided for in O 24A of the RSC which addresses the same subject matter. The regime in O 24A RSC does not operate as an exclusive code for making settlement offers with costs consequences.18 15 Rodwell v Hutchinson [2010] WASCA 197 [26]. 16 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] - [18] (Buss JA, as his Honour then was, Wheeler JA agreeing). 17 Gething M, Joseph R and Tomasi B, Civil Procedure : Western Australia (Vol 1), [24A.11.1] 18 McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [93] (Beech J, as his Honour then was). -- 11 of 31 -- [2026] WASC 80 (S) Page 12 46 An offer made pursuant to the principles in Calderbank v Calderbank will not justify an award of indemnity costs unless its rejection was unreasonable.19 This is an essential element, which involves matters of judgment and impression. The enquiry is objective. The party who makes the Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in their favour.20 All of the relevant facts and circumstances must be considered in determining whether a party's rejection of such an offer was unreasonable. 47 The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable - the matter is not to be approached by way of a presumption.21 48 In general terms, the factors which are said to be relevant to the reasonableness of a party in rejecting a Calderbank offer, while not closed, include the following:22 (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it. 49 As the plaintiff has correctly submitted, the issue of unreasonableness is not to be approached by way of hindsight. It would be contrary to principle to determine the issue of unreasonableness 'by 19 Ford Motor Company of Australia Ltd v Lo Presti [16], citing Jones v Bradley (No 2) [2003] NSWCA 258 [7] - [9], among other authorities. 20 Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [82]. 21 Ford Motor Company of Australia Ltd v Lo Presti [16] - [18] and [31], referring to SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 [37] and Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [23], among other authorities. 22 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [25]; and Rayney v Roberts [2022] WASC 360 (S) [15] (Hill J). -- 12 of 31 -- [2026] WASC 80 (S) Page 13 adopting the judgment sum ultimately awarded as a yardstick to measure the reasonableness or unreasonableness of the rejection of the offer'.23 50 Put another way, the court would need to be satisfied that reasonable people in the defendant's position, giving proper consideration to the evidence to be adduced and properly advised about the law, should have assessed their prospects of obtaining an amount greater than that offered to be so low that it was unreasonable to reject a Calderbank offer.24 Special costs orders 51 The principles applicable to the determination of a claim for special costs are those expressed by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy [No 2],25 among other authorities. The court was there dealing with s 280(2) of the LPA, which is in the same terms as the current provision, found in s 141(3) of the Uniform Law. The same principles apply to both provisions. 52 Additionally, and consistent with the above decision, I recently summarised the principles applicable to the making of special costs orders in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 19].26 I will apply those principles to the present application – it is unnecessary to restate them in these reasons. 53 Section 141(3) of the Uniform Law states: (3) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do any or all of the following — (a) order the payment of costs above those fixed by the determination; (b) fix higher limits of costs than those fixed in the determination; (c) remove limits on costs fixed in the determination; 23 Ford Motor Company of Australia Ltd v Lo Presti [89]. 24 Currie v Currie [No 3] [2018] WASC 306 [13] (Le Miere J). 25 Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S). 26 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 19] [2025] WASC 234. -- 13 of 31 -- [2026] WASC 80 (S) Page 14 (d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed. 54 The provision operates, in effect, to give the party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the 'unusual difficulty, complexity or importance of the matter'. These elements are to be addressed as matters of impression, rather than as matters of detailed evaluation, precision or science. 55 In general terms, the provision is protective of the party who benefits from the costs order, and serves the administration of justice, by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. 56 Of course, an order under the provision does not, of itself, mean that the party will recover all of the costs it has incurred, or seeks from the other parties. A special costs order does not replace the process of taxation or assessment, but modifies the limits within which that process takes place. It is the task of a taxing registrar to consider the necessity for the work undertaken and to make a judgment about the remuneration required. 57 As to the statutory criteria, the court may make an order under the statutory provision if satisfied of two things. 58 First, that the amounts allowed under the relevant scale item are inadequate in the sense that there is a fairly arguable case that the bill of costs may tax out at an amount which is greater than the amount allowable under the scale, because of the limits expressed within the scale. 59 Second, that the inadequacy of the costs allowable arises because of the unusual difficulty, complexity or importance of the matter. 60 For the purposes of assessing whether to exercise the powers conferred by the statute, it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that greater amount should be allowed than that which is allowable under the relevant determination. -- 14 of 31 -- [2026] WASC 80 (S) Page 15 61 Further, a special costs order will not be warranted simply by reference to the effort of the successful party, which may have been disproportionate in all of the circumstances. Whether an indemnity costs order should be made? The plaintiff's position 62 The plaintiff submits that by reason of a Calderbank offer made to the defendant, by letter dated 18 December 2020 (the First Offer), the defendant ought to pay the plaintiff's costs of the action, including the counterclaim, from 25 December 2020 onwards on an indemnity basis. 63 Alternatively, the plaintiff submits that by reason of a Calderbank offer made to the defendant, by letter dated 6 February 2024 (the Second Offer), the defendant ought to pay the plaintiff's costs of the action, including the counterclaim, from 1 March 2024 onwards on an indemnity basis. 64 Both letters were marked 'without prejudice save as to costs', and indicated the offers contained therein were made in accordance with the Calderbank principles and foreshadowed an application for indemnity costs in the event of rejection. The First Offer 65 The First Offer proposed a genuine compromise, according to the plaintiff. The letter was comprehensive in its terms, explaining the plaintiff's position over some five pages. 66 The First Offer was made on 18 December 2020 and was open until 12.00 noon on 24 December 2020. 67 The offer within the letter was as follows: (a) the defendant was to pay the plaintiff the sum of $3,200,000 (inclusive of GST) and inclusive of interest in respect of those items of the plaintiff’s claim set out at par 14 of the letter, within 28 days of acceptance; (b) the defendant was to pay the plaintiff’s legal costs to be taxed if not agreed; (c) the defendant’s counterclaim was to be dismissed by consent; and (d) the settlement would be on a no-admission and confidential basis. -- 15 of 31 -- [2026] WASC 80 (S) Page 16 68 When the First Offer was sent, the plaintiff says the proceedings were at a stage where pleadings had closed, discovery and inspection had been provided by both parties, and the plaintiff had filed expert evidence. Accordingly, the defendant can be taken to have been aware of the case against it and had the benefit of the plaintiff’s expert evidence. Further, in these circumstances, the plaintiff submits that the defendant ought to have had the benefit of advice on its prospects of success by the time of the First Offer. Further, the First Offer set out a detailed response to matters raised by the defendant and why the plaintiff would likely succeed at trial. 69 The plaintiff submits that the First Offer represented a substantial monetary discount of over $1,000,000, calculated as against the lower end of the plaintiff’s claim. The plaintiff says this discount is around 24.6%. This was a significant compromise on the calculated range, according to the plaintiff. 70 In any event, the plaintiff says the amount proposed in the First Offer, being $3,200,000 inclusive of GST and interest, was less than the sum awarded for damages alone following the trial (being $3,429,283.21). The Second Offer 71 The Second Offer was made at an advanced stage of the proceeding, being made on 6 February 2024. The trial of the action was due to commence on 15 April 2024. 72 Given the advanced stage of the proceeding at which the Second Offer was made, the plaintiff submits there is no doubt that the defendant ought to have had the benefit of advice on its prospects. I accept that proposition. The Second Offer incorporated details as to why the plaintiff maintained it would likely be successful at the looming trial. 73 The Second Offer was made on 6 February 2024 and was stated to be open until 29 February 2024. It was thus open for a period of some three weeks, which the plaintiff submits is a reasonable time. 74 The Second Offer was as follows: (a) the defendant will pay to the plaintiff the settlement sum of $3,300,000, without any reduction or set-off; (b) the payment is to be made on the earlier of 28 days after execution of a deed of settlement on usual terms, or by 10 April 2024; -- 16 of 31 -- [2026] WASC 80 (S) Page 17 (c) neither party will pay any part of the other party's costs of or associated with the proceeding (which is in contrast to the proposal contained in the First Offer, which required the defendant to pay the plaintiff's taxed costs); (d) after execution of the proposed deed and payment of the settlement sum, the parties will execute and file a minute of consent orders to the effect that the claim and counterclaim be dismissed with no orders as to costs, and all reserved costs or undischarged costs orders be vacated; (e) each party agrees to release and forever discharge each other from the claims the subject of the proceedings; (f) the proposed deed may be pleaded and tendered as an absolute bar and defence to any claim made or brought by a party against any other party in relation to any claims the subject of the proceedings; and (g) each party shall bear their own costs in relation to the settlement negotiations and preparation and execution of the deed. 75 As with the First Offer, the plaintiff submits that the Second Offer involved a genuine compromise of its claim. As at February 2024, the plaintiff says it had quantified its claim at $4,547,391.57 excluding interest. The Second Offer thus represented a $1,247,391.57 monetary reduction of the plaintiff’s claim. 76 In any event, the plaintiff says the Second Offer, which proposed an amount of $3,300,000 inclusive of GST and interest, was less than the sum awarded for damages alone following the trial. The defendant's position 77 The defendant opposes the indemnity costs orders in the plaintiff’s minute of proposed orders on the basis that it submits it was not unreasonable for the defendant not to accept the plaintiff's Calderbank offers made on 18 December 2020 or on 6 February 2024.27 78 As to the First Offer, the defendant emphasises that the offer was made on 18 December 2020 and was only open until 12.00 noon on 27 DS [5] and [8]. -- 17 of 31 -- [2026] WASC 80 (S) Page 18 24 December 2020. This was an unreasonably short period of time especially given the matter was not ready for trial. 79 Further, as the plaintiff was aware, the majority of the defendant’s directors are residents of the United States of America and the time allowed for in the offer for acceptance (being only six days) was inadequate. This is particularly so, according to the defendant, in circumstances where at the time the offer was made the defendant had only recently received the plaintiff's expert reports as to damages and the date for the defendant to file responsive reports was not until 29 January 2021 (more than a month after the Second Offer expired). The defendant also points to the time of the year the offer was made, noting that it expired on Christmas Eve. 80 Given the evidence led at trial, I can accept that the decision makers for the defendant tend to reside in the United States and I can reasonably infer that a decision by those persons, in the lead up to Christmas in 2020, is likely to have placed them under significant time pressure. A party who proposes a settlement offer which is open for less than one week, with a hard deadline on Christmas Eve should not be surprised to be met with a response, on a subsequent indemnity costs application, that the offeree had insufficient time to consider the proposal. 81 Further, the defendant submits that, in the case of both the First Offer and the Second Offer, the plaintiff 'only slightly bettered its offer' at trial. Each offer was about $1 million less than the plaintiff’s claim which the defendant accepts was a genuine offer of compromise. However, the defendant submits that the judgment for $3,429,283.21 was over $1 million less than the plaintiff’s claim and only a very modest improvement (less than 10%) on the First Offer of $3,200,000 and the Second Offer of $3,300,000. 82 Additionally, despite ultimately being unsuccessful on the contractual construction issue, the defendant submits it:28 …had respectable prospects of success (far greater than 10%). It was by no means weak, as is demonstrated by the detailed submissions and reasons for decision devoted to the issue. A finding that the failure to accept either offer was unreasonable, where such a meritorious defence was available to the defendant – and where other defences were successful – would not do justice to the strength of the defendant’s contractual construction defence. 28 DS [10]. -- 18 of 31 -- [2026] WASC 80 (S) Page 19 83 In these circumstances, the defendant submits it cannot be fairly said that the failure to accept either offer was so unreasonable as to warrant the award of indemnity costs.29 Disposition 84 The authorities which I have discussed earlier in these reasons serve to reinforce two points, which stand as general principles in this field. The first is that a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable. The second is that all of the relevant facts and circumstances must be considered in determining this question. The issue is not to be approached by way of a presumption. 85 The outcome at the trial was that the plaintiff was awarded a sum of $3,429,283.21, plus interest in the sum of $1,033,736.14. Accordingly, the plaintiff was awarded a total of $4,463,019.35 when interest is taken into account. 86 The table below summarises the monetary difference between the two offers, the amount quantified by the plaintiff within the offers, and the amount awarded following trial (exclusive of interest): Plaintiff's quantification of its claim Amount of settlement offer Judgment sum awarded First Offer made on 18 Dec 2020 $4,245,038.69 to $4,271,438.69 $3,200,000 $3,429,283.21 Second Offer made on 6 Feb 2024 $4,547,391.57 $3,300,000 $3,429,283.21 87 I recognise that both offers were expressed in detailed terms, with supporting analysis to explain the offers and the reasons why they ought be accepted by the defendant. The offers were expressed to be Calderbank offers and expressly identified the plaintiff's intention to seek indemnity costs in due course. There is also 'daylight' between the offers and the amount award to the plaintiff at trial, around $230,000 in the case of the First Offer and around $130,000 in the case of the Second Offer. 88 Importantly, the settlement proposals represented a considerable discount to the amounts quantified by the plaintiff at the relevant times, as detailed within the letters themselves. 29 DS [11]. -- 19 of 31 -- [2026] WASC 80 (S) Page 20 89 The Second Offer was open for a reasonable period, around three weeks. However, as already noted, the First Offer had a rather short fuse on it and was issued in the lead up to Christmas Eve and in circumstances in which the overseas opposing party would likely not have a full opportunity to consider the proposal. 90 Apart from this last point concerning the timing of the First Offer, the foregoing matters are factors in favour of the conclusion that the failure to accept the offers was unreasonable. 91 There are a number of matters which point against this conclusion, however. 92 Most significantly, the defendant's prospects of successfully defending the contractual claims must be taken into account, and I consider this is a highly material issue to consider in the present circumstance. The ability of the defendant to successfully defend the primary contractual claims hinged on the proper construction of the Varied Lease. 93 In this regard, I recognise that the plaintiff has not sought to characterise the defendant's position as hopeless or used any similar epithets in its submissions,30 and properly so. 94 Put simply, the contractual claims advanced by the plaintiff rested on the proper construction of a lease instrument which was not easy to construe and was open to different constructions. That much should be clear from the court's reasons within Part VII of the Judgment (at [473] to [752]). Counsel for the plaintiff described the principal provisions as 'somewhat awkward' and 'not so easily construed'. Those descriptions were accurate, in my opinion. 95 The court also concluded there was a 'degree of tension' between the first paragraph of cl 3.9(a) and the second paragraph of that provision, as well as the terms of cl 1.1(i) and cl 1.1(t) of the Varied Lease. 96 The court observed in the Judgment that: [473] The plaintiff's claims give rise to disputed questions as to the proper construction of the Varied Lease. The lease instrument appears to have been drafted in an organic manner, without a keen eye for consistency between each clause. The plaintiff accepted in its submissions that cl 3.9(a) of the Varied Lease, one of the 30 PS Reply [7]. -- 20 of 31 -- [2026] WASC 80 (S) Page 21 principal provisions in the proceeding, was a 'somewhat awkward provision' which was 'not so easily construed'. [474] The process of construing the instrument is therefore not straightforward. The parties presented diametrically opposed positions as to how the lease ought be interpreted… … [523] The submissions advanced by the parties as to the proper construction of cl 3.9(a) of the Varied Lease yield different conclusions. Both parties made reference to the terms of cl 3.9(a), as well as sub paragraph (x) to the definition of 'Outgoings' in cl 1.1(i) and the terms of cl 1.1(t), among other provisions in the Varied Lease. … [524] It is immediately apparent there is a degree of tension between the first paragraph of cl 3.9(a) and the second paragraph thereof, as well as the terms of cl 1.1(i) and cl 1.1(t), all of which appear to address to some extent the question of the parties' obligations to repair or maintain the premises. A close analysis of the provisions is required. [525] Establishing the proper construction of an instrument such as this, which includes clauses in apparent tension with each other and which appears to have been drafted or developed in an organic fashion, is not straightforward. In the end, it is important to approach the task in an effort to arrive at an objective determination of the meaning of the provisions, giving meaning to the language which has been used, asking what a reasonable business person would have understood the terms to mean, and being guided by whether the provisions as construed make commercial sense or not. 97 The plaintiff's unpaid rent claim, which succeeded at trial in the amount of $494,416.21, was dependent on findings of fact which were the subject of disputed evidence at trial, as explained in Part IX of the Judgment. Indeed, the primary contractual claims, as well as resting on disputed issues of construction, depended on findings of fact being made in favour of the plaintiff which were the subject of real contest at trial (both as to liability and as to quantification). 98 To add to this, both parties adduced expert evidence on the issues of corrosion and damage. There was a high degree of commonality and agreement between the experts at trial (see [440] of the Judgment). There was, however, real dispute between the parties as to the conclusions to -- 21 of 31 -- [2026] WASC 80 (S) Page 22 be drawn from the expert evidence (and the lay evidence led at trial), with a substantial body of oral and documentary evidence being led on these contested issues. 99 It may be accepted that the defendant would have been better off had it accepted either of the First Offer or the Second Offer, relative to the amount quantified by the plaintiff at the time and, to a lesser extent, also given the award of damages and compensation made at trial. Of course, the amount by which the judgment sum exceeded the offered amounts is not the critical issue to examine, as noted above. 100 As to the First Offer, as noted above, it also suffers from the vice of being expressed to be open for a short period of time which, in the circumstances I have indicated, I consider was unreasonable. 101 By the time the Second Offer was made, the defendant will have had ample time to consider its position in the litigation and assess its risks. There was no information asymmetry by that time, which was in the final lead up to the trial of the action. Nonetheless, even armed with all of the documentary evidence to be adduced at trial, as well as the outlines of evidence to be led by the plaintiff and the expert reports which would be tendered, I consider the defendant would justifiably have considered its prospects of success in the action as reasonable at that point in time (and certainly not as 'weak'). The outcome of the action was inevitably going to turn on the course of the evidence led at the trial on disputed factual issues and, significantly, the court's construction of this rather awkwardly expressed lease. 102 In these circumstances, the offer presented by the plaintiff at the time, while itself a reasonable proposal, involving a genuine compromise against the quantification of the claim at the time, and being one which the plaintiff has bettered at trial, is not one the court can accept is an appropriate platform for an award of indemnity costs on the basis submitted by the plaintiff. That is, I am not persuaded that an award of indemnity costs should be made having regard to the non-acceptance of the Calderbank offers made by the plaintiff, when all of the circumstances are assessed. Whether special costs orders should be made? The plaintiff's position 103 The plaintiff seeks an order for special costs in respect of four items in the draft bill of costs. The order is sought pursuant to both s 141(3) of -- 22 of 31 -- [2026] WASC 80 (S) Page 23 the Uniform Law and s 280(2) of the LPA, being the predecessor legislation. The plaintiff seeks an order to remove the limits in Table B of the applicable cost scales. 104 As the action was commenced in 2017 and ran through until trial in 2024, a number of costs determinations are relevant to the assessment of the plaintiff's costs, namely:31 (a) the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2016; (b) the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018; (c) the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020; (d) the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022; and (e) the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024. 105 The items in respect of which the claim for special costs is made, and the quantified amounts, are set out in the table below:32 Description Scale Item Scale Maximum Sum claimed in draft bill Difference Writ of Summons (with indorsement of claim) 1(a) $726 $2,992 $2,266 Statement of Claim (original and amended) 1(c) $4,840 $9,658 $4,818 Discovery 7(b) $4,950 $16,388.90 $11,438.90 Preparation of Case 17/18/19 $65,780 $503,471.10 $437,691.10 106 The plaintiff submits, in respect of the first limb of the statutory provision, that the maximum amounts for the above items are inadequate and that it is fairly arguable that a bill of costs would tax at an amount 31 PS [3.3]. 32 PS [43] and Annexure SE-3. -- 23 of 31 -- [2026] WASC 80 (S) Page 24 which is more than the limits that are imposed by the applicable scale over time.33 107 Further, in relation to the second limb, the plaintiff submits that the inadequacy arises because of the unusual difficulty, complexity and importance of the action.34 The defendant's position 108 The defendant opposes the special costs orders.35 109 The defendant submits that the proceedings were primarily a dispute as to contractual construction with no particular complexity and it is in relation to the contractual construction claim that the plaintiff was successful. 110 The defendant further submits that a number of the plaintiff’s other claims, including its claims in relation to tort and breaches of the EP Act, were unsuccessful and accordingly to the extent that there was any complexity to the matter, this was due to issues raised by the plaintiff which the plaintiff was ultimately unsuccessful on. 111 Similarly, the defendant says that its own counterclaim was simple. Disposition 112 I must respectfully disagree with the defendant's characterisation of the case. That characterisation is not borne out by the course of the proceedings, or the number and complexity of the issues which were ventilated by the parties at trial. I need not track through the reasons published by the court – they will speak for themselves. 113 Having regard to the draft bill of costs prepared by Ms Edwards, and my assessment of the matter, I consider the plaintiff has made good on the contention that it is fairly arguable that the plaintiff's bill of costs would tax above the limits that are imposed by the applicable scale for the identified items. 114 As to the writ of summons, the scale amount is $726 and the amount claimed is $2,992. I have reviewed the writ of summons (Folio 1). The indorsement is relatively detailed and will have required some hours on 33 PS [40]. 34 PS [46]. 35 DS [4]. -- 24 of 31 -- [2026] WASC 80 (S) Page 25 the part o counsel and the solicitor to prepare. I accept it is fairly arguable the item will tax above $726. 115 The next item is the statement of claim, both as to the original pleading and the amended pleading (Folios 5 and 8). A review of the pleadings supports the solicitor's assessment in the draft bill of costs as to the time required to have been spent by the solicitor, counsel and others. I accept it is fairly arguable the item will tax above $4,840. 116 The next item is discovery. The amount claimed in the draft bill of costs is well above the scale item. I have reviewed the affidavits of discovery sworn by Mr Hawkins (Folios 29 and 134, sworn in September 2018 and January 2023 respectively). The first of these affidavits identifies around 230 documents in the plaintiff's discovery, and the second affidavit identifies a further 70 documents or so. I can reasonably conclude that the number of hours identified by Ms Edwards in her draft bill fairly reflects the time required to attend to the discovery process on behalf of the plaintiff, recognising as well that the documents to be gathered and discovered in this action stretched back over a significant time period. I accept it is fairly arguable the item will tax above $4,950. 117 Finally, I refer to the 'preparation of case' item, for which the applicable scale maximum is $65,780. The amount claimed in the draft bill is over $500,000. This item includes work reasonably and necessarily undertaken prior to the commencement of the action. Ms Edwards has prepared a detailed schedule in support of this claim, which is found at pp 34 to 38 of her affidavit. A review of that schedule reveals the extent of the work involved on the part of the plaintiff's solicitor and counsel team in preparing the case for trial, which I accept would, at a level of fair arguability, tax about the scale limit. I do not assess the work involved (or the costs associated therewith) as having been disproportionate to the issues arising in the action and the necessary work which was required to be performed to properly prepare the action for trial. 118 Given these above conclusions, it remains to assess whether the inadequacy in the scale arises because of the 'unusual difficulty, complexity or importance of the matter'. The plaintiff submits the matter was unusually difficult and was complex, and further submits the matter was important. I accept these submissions. It is evident to the court that -- 25 of 31 -- [2026] WASC 80 (S) Page 26 the submissions advanced by the plaintiff in its outline of submissions at [47] to [49] should largely be accepted.36 119 The following matters should be noted in particular, which I accept: (a) The factual compass of the action stretched over many years, dating back to around 2004 and culminated in events which occurred in 2020 (after the proceedings had been commenced). I refer to the chronology of matters detailed in the Judgment at [308] to [426]. (b) It was necessary for the court to construe a poorly drafted lease, to resolve competing interpretations proffered by the parties, in respect of which the parties were 'diametrically opposed'.37 (c) As submitted by the plaintiff, given the nature of the dispute, it was necessary for a thorough review of the background surrounding the Varied Lease and alleged breaches to be undertaken, which necessarily involved a review of the events and evidence during the course of the lease and beyond the time that the defendant vacated the premises. (d) At the trial of the action, around 822 documentary exhibits were included in the trial bundle and the plaintiff called nine lay witnesses and three expert witnesses across three disciplines (being valuation, building and corrosion science). The defendant called three lay witnesses and an expert corrosion engineer.38 The cross-examination of the witnesses was extensive and both parties made submissions as to the credibility and reliability of the witnesses. (e) The legal and factual issues in dispute in the trial were extensive, including expert evidence issues as to corrosion, the proper storage of ammonium sulphate, the process for reimbursement of the plaintiff by BHP, the plaintiff's contractual claim and its claim in tort, the defendant's counterclaim, the claim for unpaid rent, and a consideration of the effect of the EP Act and the associated regulations, the Civil Liability Act, the Commercial Arbitration legislation, and the applicable limitation statutes. 36 PS [47] – [49]. 37 Judgment [473] – [474]. 38 Judgment [26] – [30]. -- 26 of 31 -- [2026] WASC 80 (S) Page 27 (f) The trial of the action spanned 13 days. The Judgment runs to 320 pages and refers to some 105 authorities. (g) The plaintiff's claim for damages was initially in the amount of over $5 million. I accept the action was of importance to the plaintiff given the sums involved. The plaintiff points to the apparent financial circumstances of the plaintiff at the time proceedings were commenced in support of the 'importance' aspect of the application for special costs. The court did find that the plaintiff had a large debt at the time, but the Judgment also records that the business owned a number of assets. As to this, I refer to the matters recorded at [769] of the Judgment as follows:39 [769] As to the plaintiff's financial position, Mr Joseph Hawkins testified that his business had a large debt which he was seeking to reduce before attempting to obtain finance to rebuild the Warehouse. Certainly, he accepted in his evidence that the business owned a number of assets in which he held equity, and accepted that he could have borrowed more money, but did not wish to. He explained that he 'wasn't going to stick another rope around [his] neck'. It is relevant to the mitigation argument raised by the defendant that the plaintiff had the ability to fund the rectification works, and I find that the plaintiff had that ability. (h) I therefore do not wholly accept the submission advanced by the plaintiff as to the basis for the 'importance' of the action. Nonetheless, I am able to conclude that the dispute was important to the plaintiff for the purposes of the present costs application. 120 The submission advanced by the plaintiff, as follows, should be accepted, in my view:40 …the matter was clearly unusually difficult having regard to the sum in dispute, the length of trial and the period of time that the relevant events spanned, including the passage of time that had passed since the Original Lease was entered into. There were further difficulties associated with interpreting the lease, addressing the appropriate manner in which to store ammonium sulphate and ascertaining whether reimbursements were made by BHP to the Defendant and the nature of the same. Finally, given the nature of the dispute and the period of time the relevant events spanned, a significant number of witnesses were called, experts across three areas of expertise were called and a significant number of 39 Judgment [769]. 40 PS [47.9] -- 27 of 31 -- [2026] WASC 80 (S) Page 28 documents were tendered. Accordingly, significant amount of work was required to be undertaken, particularly in relation to the pleadings, discovery and preparation of case 121 The court is able to conclude that the scale inadequacy, as earlier set out, can be attributed to the above aspects of the proceeding, namely its unusual difficulty, or its complexity, or its overall importance. I therefore accept the plaintiff has demonstrated the necessary bases for the orders it seeks under either the LPA or the Uniform Law, and I will make the orders sought by the plaintiff in this regard in its amended minute of proposed orders. Conclusion and orders 122 For the foregoing reasons, I will make the following orders: 1. The defendant is to pay 95% of the plaintiff's costs of and incidental to the action, including the counterclaim, to be taxed if not agreed. 2. The costs at order 1 shall include the following reserved costs: (a) the costs reserved by the order made on 15 March 2019 (case management conference); (b) the costs reserved by the order made on 12 April 2019 (consent orders); and (c) the costs reserved by the order made on 4 March 2020 (case management conference). 3. The plaintiff's costs are to include an allowance for the costs of two counsel. 4. The costs that are the subject of orders 1, 2 and 3 above shall be assessed without reference to the limits provided for in Table B in respect of the following items of the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2016, 2018, 2020, 2022 and 2024: (a) Item 1(a) - writ of summons; (b) Item 1(c) - statement of claim; (c) Item 7(b) - discovery; and -- 28 of 31 -- [2026] WASC 80 (S) Page 29 (d) Items 17/18/19 - preparation of case. 5. The defendant is to pay the plaintiff's costs of this application on a party/party basis. -- 29 of 31 -- [2026] WASC 80 (S) Page 30 ATTACHMENT A The plaintiff's amended proposed costs orders 1. The Defendant pay 95% of the Plaintiff’s costs of and incidental to the Action, including the counterclaim, to be taxed if not agreed. 2. The costs at Order 1 include the following reserved costs: 2.1. Reserved costs order made on 15 March 2019 (case management conference); 2.2. Reserved costs order made on 12 April 2019 (consent orders); 2.3. Reserved costs orders made on 4 March 2020 (case management conference); and 2.4 Reserved costs order made on 1 May 2024 (day 11 of trial). 3. The costs that are the subject of Order 1 and 2 above be assessed as follows: 3.1 The costs up to and including 24 December 2020 be assessed without reference to the limits provided for in Table B in respect of the following items of the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2016, 2018 and 2020: 3.1.1 Item 1(a) – Writ of Summons; 3.1.2 Item 1(c) – Statement of Claim; 3.1.3 Item 7(b) – Discovery; and 3.1.4 Item 17/18/19 – Preparation of Case. 3.2 The Defendant pay all of the costs incurred by the Plaintiff from and including 25 December 2020 except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions the Plaintiff is completely indemnified by the Defendant for its costs. 4. Alternatively, the costs that are the subject of Order 1 and 2 above be assessed as follows: 4.1 The costs up to and including 29 February 2024, be assessed without reference to the limits provided for in Table B in respect of the following items of the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2016, 2018, 2020, 2022 and 2024: 4.1.1 Item 1(a) – Writ of Summons; 4.1.2 Item 1(c) – Statement of Claim; -- 30 of 31 -- [2026] WASC 80 (S) Page 31 4.1.3 Item 7(b) – Discovery; and 4.1.4 Item 17/18/19 – Preparation of Case. 4.2 The Defendant pay all of the costs incurred by the Plaintiff from and including 1 March 2024, except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions the Plaintiff is completely indemnified by the Defendant for its costs. 5. In the further alternative, the costs that are the subject of Order 1 and 2 be assessed without reference to the limits provided for in Table B in respect of the following items of the Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2016, 2018, 2020, 2022 and 2024: 5.1 Item 1(a) – Writ of Summons; 5.2 Item 1(c) – Statement of Claim; 5.3 Item 7(b) – Discovery; and 5.4 Item 17/18/19 – Preparation of Case. 6. The Plaintiff’s costs are to include an allowance for the costs of two counsel, to be assessed on the same basis as ordered above. 7. The Defendant pay the Plaintiff’s costs of this application on the same basis as ordered above. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LM Associate to the Honourable Justice Lundberg 20 JULY 2026 -- 31 of 31 --