NORDBURGER PTY LTD v KORONIS AND VARI & ORS (NO 5) [2026] SADC 61

Applicant: NORDBURGER PTY LTD Director of Company: MR T MARTIN Respondent: KORONIS AND VARI Counsel: MR A BAILLIE - Solicitor: CARUSO & CO LEGAL Hearing Date/s: 02/03/2026 File No/s: CIV-24-011794 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. NORDBURGER PTY LTD v KORONIS AND VARI & ORS (NO 5) [2026] SADC 61 Reasons for Ruling of his Honour Judge Durrant 29 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - RELEVANT CONSIDERATIONS GENERALLY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE — CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – SEPARATE DECISION OR DETERMINATION Respondent seeks orders the applicant pay its costs of several interlocutory steps in these proceedings on a standard or an indemnity basis and that those costs be taxed and paid forthwith- in respect of some of those costs the respondent seeks an order the director of the applicant who is a legal practitioner and was granted leave to represent the applicant as a director also be liable- costs of application for interlocutory injunctive relief to restore applicant to its tenancy granted until an urgent trial considered- costs of vacation of urgent trial due to non-compliance of applicant with court orders considered- second urgent trial listed- injunction extended between directions hearing listed to manage this action- applicant ordered to pay security for costs- court declined to hear an application of applicant for summary judgment- costs of application of applicant for summary judgment considered- vacation of second urgent trial due to non-compliance of applicant with court orders- costs of vacation of second urgent trial considered- applicants application for judicial recusal for bias refused- costs of application for judicial recusal considered- injunction discharged- costs of applications to discharge or extend the injunction considered. -- 1 of 29 -- Held: 1. The applicant should pay the costs of the respondent of and incidental to the conduct of the proceedings up to and including 11 February 2025 (including the costs of the application for injunction and the costs thrown away because of the vacation of the first urgent trial) on a party- party basis to be taxed if not agreed; 2. The applicant and the director of the applicant Thomas Martin should pay the respondents costs thrown away of and incidental to vacation of the second urgent trial, including in respect of the hearing on 16 April 2025, on an indemnity basis to be taxed if not agreed and to be payable forthwith; 3. The applicant and the director of the applicant Thomas Martin should pay the respondents costs of and incidental to the summary judgment application on an indemnity basis to be taxed if not agreed and to be payable forthwith; 4. The applicant and the director of the applicant Thomas Martin should pay the respondents costs in respect of the hearings on 29 April 2025, and 7 May 2025, on an indemnity basis to be taxed if not agreed and to be payable forthwith; 5. The applicant should pay the respondents costs of and incidental to the recusal application on a party- party basis to be taxed if not agreed and to be payable forthwith; and 6. The applicant and the director of the applicant Thomas Martin should pay the respondents costs of and incidental to the applications to discharge and extend the injunction to be taxed if not agreed and to be payable forthwith. Retail and Commercial Leases Act 1995 (SA) s 26; Uniform Civil Rules 2020 (SA) r 25, 67, referred to. Nordburger Pty Ltd v Koronis and Vari [2025] SADC 15; Nordburger Pty Ltd v Koronis and Vari (No.2) [2025] SADC 26; Nordburger Pty Ltd v Koronis and Vari (No. 3) [2025] SADC 70; Nordburger v Koronis & Vari (No. 4) [2026] SADC 15; Holt v Bunney [2020] SASCFC 89; Treffers v Phung [2021] SASC 38; Oshlack v Richmond River Council (1998) 193 CLR 72 ; Colgate- Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 ; Tetijo Pty Ltd v Keeprite Australia Pty Ltd (1996) 65 FCR; Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75; Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2) [2006] SASC 87; Australian Flight Services v Minister for Industry Science & Technology [1996] FCA 288; Courtney v Medtel Pty Ltd (No 3) ; All Services Australia Pty Ltd v Telstra (2001) 171 ALR 330 ; Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd ; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545; Allstate Life Insurance Co v Australia and New Zealand Banking Corporation Ltd (No 13) [1995] FCA 626; Mitanis v Pioneer Concrete (Vic) Pty Ltd (1998) ATPR ; Fiduciary Limited v Morningstar Research Pty Ltd (200) 55 NSWLR 1; Victorian Legal Services Board v Kuksal [2024] VSC 48; Banque Commerciale SA (in Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; Lawcover Insurance Pty Ltd v Muriniti [2017] NSWSC 1557 ; Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34; Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA; Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5; Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275; Hillier v Martin (No 2) [2021] FCA 509; Hillier v Martin (No 9) [2021] FCA 1319; Hillier v Martin (No 19) [2024] FCA 210; Hillier v Martin (No 20) [2023] FCA 1686; Hillier v Martin (No 22) [2025] FCA 507; Martin v Hillier [2025] FCA 567, considered. -- 2 of 29 -- NORDBURGER PTY LTD v KORONIS AND VARI & ORS (NO 5) [2026] SADC 61 Introduction and Summary 1 The Respondent (the Landlords) seek orders the Applicant (Nordburger), pay its costs of several interlocutory steps in these proceedings. 2 On 19 December 2024, I delivered a Ruling granting Nordburger interlocutory injunctive relief to restore its tenancy (the Injunction Decision),1 until an urgent trial to commence on 27 February 2025 (the Injunction) (the first urgent trial).2 3 Following the delivery of Nordburger Pty Ltd v Koronis and Vari3 after the first urgent trial had been vacated (the Second Injunction Decision), I continued the Injunction and listed a second urgent trial to commence on 29 April 2025 (the second urgent trial). The Injunction was further extended from time to time at directions hearings convened to manage this action.4 4 On 31 March 2025 I declined to hear an application of Nordburger for summary judgment (the Summary Judgment Decision).5 5 On 1 April 2025 following Nordburger Pty Ltd v Koronis and Vari (No.2)6 Burnett DCJ ordered Nordburger pay security for costs (the Security for Costs Decision). 6 On 16 June 2025, following Nordburger Pty Ltd v Koronis and Vari (No. 3),7 I refused Nordburger’s application for my recusal (the Recusal Decision). 7 On 2 March 2026, having earlier delivered Nordburger v Koronis & Vari (No. 4),8 I discharged the Injunction (the Discharge Decision). 8 I adopt in all respects the procedural history of this action set out in those judgments and reasons and the findings made therein. 9 These reasons address the costs of and incidental to: 1 Granted Order of Judge Durrant, 19 December 2024, FDN 17 (‘Injunction Decision’). 2 Record of Outcome, 19 December 2024, FDN 16. 3 Nordburger Pty Ltd v Koronis and Vari [2025] SADC 15 (‘Nordburger No.1’). 4 Record of Outcome, 25 February 2025, FDN 41. 5 Unpublished Ruling of Judge Durrant, 31 March 2025, FDN 68 (‘Summary Judgement Decision’); Record of Outcome, 31 March 2025, FDN 71. 6 Nordburger Pty Ltd v Koronis and Vari (No 2) [2025] SADC 26 (‘Nordburger No.2’); Record of Outcome, 21 March 2025, FDN 70. 7 Nordburger Pty Ltd v Koronis and Vari (No.3) [2025] SADC 70 (‘Nordburger No.3’); Record of Outcome, 16 June 2025, FDN 95. 8 Nordburger Pty Ltd v Koronis and Vari [2026] SADC 15 (‘Nordburger No.4’); Record of Outcome, 2 March 2026, FDN 127. -- 3 of 29 -- [2026] SADC 61 2 • the conduct of the proceedings up to and including 11 February 2025, including the costs of the application for injunction and the costs thrown away because of the vacation of the first urgent trial; • the costs thrown away because of the vacation of the second urgent trial, including the hearing on 16 April 2025;9 • the application the subject of the Summary Judgment Decision;10 • hearings on 29 April 2025, and 7 May 2025; • the recusal application; and • two applications the subject of the Discharge Decision.11 10 The Landlords seek orders those costs be awarded on an indemnity or, alternatively, a standard cost basis, and that they be taxed and payable forthwith. 11 The Landlords seek those costs orders against Nordburger in all instances. As against Thomas Martin, a director of Nordburger, they seek orders he pay those costs in respect of the Discharge Decision, the summary judgment application, and the hearings on 29 April 2025 and 7 May 2025.12 12 The application for costs was dealt with on the papers, as the parties agreed. Each were each given opportunity to file and serve written submissions.13 The Landlords filed written submissions.14 Nordburger did not. 13 For the reasons set out below I will make orders, subject to hearing from the parties as to their final form in the following terms: 1. Nordburger pay the Landlords costs thrown away of and incidental to vacation of the first urgent trial on a party- party basis to be taxed if not agreed; 2. Nordburger pay the Landlords the costs thrown away of and incidental to vacation of the second urgent trial, including of the hearing on 16 April 2025, on an indemnity basis to be taxed if not agreed and payable forthwith, certified fit for counsel and instructing solicitor; 9 Interlocutory Application, 17 February 2025, FDN 35; Record of Outcome, 16 April 2025, FDN 83. 10 Interlocutory Application, 7 March 2025, FDN 48. 11 Interlocutory Application, 30 June 2025, FDN 102; Record of Outcome, 10 July 2025, FDN 109; Interlocutory Application, 4 September 2025, FDN 120, Order 1. 12 Affidavit of Andrew John Caruso, 23 March 2026, AJC-5-6, FDN 130; On 28 March 2025, the solicitors for the Landlords had written to Nordburger and Mr Martin putting them on notice they may seek such non-party costs orders. 13 Transcript, 2 March 2026, T4.1–T16.16. 14 Written Submissions, 27 March 2026, FDN 131. -- 4 of 29 -- [2026] SADC 61 3 3. Nordburger and Mr Martin pay the Landlords costs of and incidental to the summary judgment application, on an indemnity basis to be taxed if not agreed and payable forthwith, certified fit for counsel and instructing solicitor;15 4. Nordburger and Mr Martin pay the Landlords costs in respect of hearings on 29 April 2025, and 7 May 2025 on an indemnity basis to be taxed if not agreed and to be payable forthwith, certified fit for counsel and instructing solicitor; 5. That Nordburger pay the Landlords costs of and incidental to the recusal application on a party- party basis to be taxed if not agreed and to be payable forthwith, certified fit for counsel and instructing solicitor; and 6. Nordburger and Mr Martin pay the Landlords costs of and incidental to the Discharge Decision to be taxed if not agreed and to be payable forthwith, certified fit for counsel and instructing solicitor. Consideration Principles relating to award of costs 14 This Court may order costs in favour of a party or against a party or non- party, at any stage of an action.16 That discretion must be exercised judicially.17 15 Uniform Civil Rule 194.6(2) provides: … In exercising its discretion as to costs, the Court may have regard to any factors it considers relevant. (2) For example, the Court may have regard to the following factors— (a) any misconduct or unreasonable conduct of a party in connection with a proceeding; (b) any breach by a party of overarching obligations, these Rules or an order of the Court. 16 The overarching obligations are relevant as they are concerned with what the court requires of parties. Those obligations require compliance with orders made and preparedness and readiness.18 17 Generally, a successful litigant is entitled to costs on a party-party or standard basis.19 The circumstances of a case may be such as to warrant the Court departing from the usual course and awarding costs on an indemnity or other basis.20 15 Interlocutory Application, 30 June 2025, FDN 102; Interlocutory Application, 10 July 2025, FDN 107, Order 1; Interlocutory Application, 4 September 2025, FDN 120. 16 UCR (n 16) r 194.1(1); Holt v Bunney [2020] SASCFC 89 [215] referred to in Treffers v Phung [2021] SASC 38 [6] per Nicholson J. 17 Ibid. 18 UCR (n 16) r 3.1(1). 19 Oshlack v Richmond River Council (1998) 193 CLR 72 [67]. 20 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 232–234. -- 5 of 29 -- [2026] SADC 61 4 18 While there may be some special or unusual feature of a case which justifies a departure from that ordinary practice, the categories of facts and circumstances in respect of which that discretion may be exercised, are not closed.21 19 Non- compliance with the UCR and the principles contained therein may cause the court to make an order a person who has failed to comply must pay the costs arising from that failure.22 20 It is well understood Courts should endeavour to ascertain which party caused or contributed to incurring of the costs in question.23 21 As for the award of the costs in respect of interlocutory applications, they usually follow the success or failure of the application, if that can be ascertained.24 22 In respect of the costs of interlocutory injunctions, the entitlement to an award of costs is not straightforward.25 23 If the applicant for an interlocutory injunction fails to establish a prima facie case and the application is dismissed, that may be an appropriate basis upon which to order the applicant pay the costs of the interlocutory application. 24 However, as applications for interlocutory injunctions involve consideration of the balance of convenience, it may be fair and equitable to order costs await determination of the ultimate rights and liabilities in the case. 25 It may also be the case that given the stage of the action, it is difficult to assess which party caused the incurring of the costs. 26 As for applications for summary judgment, if the application is unsuccessful, as a matter of principle the losing party should be liable for costs. Much will depend though on the nature of the issues on the summary judgment application. 27 In that respect, the court must consider whether the proximate cause of the incurring of the costs of the application is the making of the unsuccessful application for summary judgment, rather than the prosecution or defence of the action; an event which only can be determined at the conclusion of the action.26 28 Relevant matters might include whether there is any dispute as to the facts or law or both, and the timing and content of any evidence adduced on the application. 21 Tetijo Pty Ltd v Keeprite Australia Pty Ltd (1996) 65 FCR 1 [8]. 22 UCR (n 16) r 3.1. 23 Mayfield Family Wines Pty Ltd v Growers Wine Group Pty Ltd (No 2) [2021] SASC 75 [7] per Blue J. 24 Ibid [10]. 25 Ibid. 26 Ibid [12]. -- 6 of 29 -- [2026] SADC 61 5 29 As for orders costs be payable forthwith, it is usually the case costs are not taxed or payable until the principal proceedings are concluded.27 30 A departure from that general approach may be justified if an interlocutory proceeding has involved a discrete issue which has been resolved.28 31 If the interlocutory proceeding concerns matters of pleadings, especially pleadings in a complex action, an order will not usually be made.29 32 Having said that, if the principal proceedings are not likely to be resolved for some time, meaning in the absence of an order the successful party will not recover costs for a long period, payment forthwith may be appropriate.30 33 Further, if the interlocutory application has removed one of several causes of action in its entirety, it may be appropriate to order costs payable forthwith.31 34 Each case must be considered by reference to its own particular facts. 35 As further guidance, Barrett J identified three cases where it might be appropriate to depart from the usual approach: (1) if the interlocutory proceeding represents the determination of a separately identifiable matter or may be viewed as a completion of a discrete aspect of the action, (2) if there has been unreasonable conduct by the party against whom costs have been ordered and (3) where a considerable time remains before the action will ultimately be determined.32 36 As for the award of costs on a recusal application, there are no special rules.33 A recusal application is a serious matter and the court should have regard to whether the other party or parties were properly entitled to take a position in relation to that application as it could have affected their interest. 37 As for whether the court should make a third-party costs order, several factors may favour such an award if it has been established that: • the unsuccessful party was the moving party and not the defendant; • the source of funds for the litigation was the non-party or its principal; 27 UCR (n 16) r 194.4(8); Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2) [2006] SASC 87 [4]- [8]. 28 Australian Flight Services v Minister for Industry Science & Technology [1996] FCA 288; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. 29 All Services Australia Pty Ltd v Telstra (2001) 171 ALR 330 at 333; Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732. 30 Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 (‘Life Airbag Company’); Allstate Life Insurance Co v Australia and New Zealand Banking Corporation Ltd (No 13) [1995] FCA 626 (‘Allstate Life Insurance’). 31 Mitanis v Pioneer Concrete (Vic) Pty Ltd (1998) ATPR 41, 623. 32 Fiduciary Limited v Morningstar Research Pty Ltd (200) 55 NSWLR 1 (‘Fiduciary Limited’). 33 Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48 [29] (‘Victorian Legal Services Board’). -- 7 of 29 -- [2026] SADC 61 6 • the conduct of the litigation was unreasonable or improper; • the non-party, or its principal, had an interest (not necessarily financial) equal or greater than the party or, if financial, a substantial interest; and • the unsuccessful party was insolvent or a person of straw. 38 Those criteria are not exhaustive, but a non-party cost order is unusual. The history of this action and the conduct of Nordburger 39 While I rely on the interlocutory history detailed in the reasons and the decisions referred to, and on the whole of the court record, it is necessary to recount parts of that chronology specific to the categories of costs sought. 40 Following the Injunction and other orders made on 19 December 2024, a hearing for directions was listed for 3 February 2025. At that hearing I listed, at the urging of Nordburger, an urgent trial commencing 27 February 2025.34 41 The conduct of Nordburger thereafter did not reflect its stated desire for an urgent trial. With the Injunction in place, it failed to comply with the orders of the court directed to ensuring the action progressed to trial. 42 Those failures caused vacation of the first urgent trial and later the second urgent trial and delay and prolongation of this action.35 43 Nordburger failed to prosecute this action in accordance with the overarching principles, and the discretion of the court to award costs on other than the usual or standard basis, in some respects, should be exercised. 44 The non-compliance concerning the first urgent trial involved: • failure to file as ordered an amended Claim, by 24 December 2024; • its 29 January 2025 application to vary the timetabling orders made on 19 December 2024, and obtain further time to file an amended Claim;36 • its failure to comply with the varied timetable it had sought by not by 5 February 2025 filing an amended Claim or affidavits in opposition to the application for security for costs or a written outline; 34 Injunction Decision (n 1); Record of Outcome, 19 December 2024, FDN 16. 35 Until the first trial was vacated Nordburger was represented by solicitors and counsel, albeit one firm ceased to act and was replaced and further represented until that firm obtained leave to cease to act, as required by the UCR, as the second urgent trial had been listed. 36 Interlocutory Application, 29 January 2025, FDN 21; Affidavit of James Peter Forde, 29 January 2025, FDN 22. -- 8 of 29 -- [2026] SADC 61 7 • its termination of its solicitors and engagement of another firm and counsel just prior to the hearing of the application for security for costs; and • its instruction of counsel at the hearing of the application for security to seek an adjournment so it could consider amendment of its Claim and the filing of material in opposition to the application. 45 Accepting the obvious, I vacated that first urgent trial. Counsel for Nordburger accepted when I did so it was for his client to apply for another urgent listing for trial and to convince the court that should be accommodated. 46 With that in mind, I varied the Injunction to expire 18 February 2025, ordered any amended Claim, affidavits in response to the application for security and any application for and any affidavit in support of the further extension of the Injunction and a further urgent trial all be filed by 14 February 2025. 47 Thereafter, solicitors for Nordburger took steps to advance this action commencing with, on 14 February 2025, filing Statement of Claim- Rev 1.37 48 On 17 February 2025, Nordburger filed an application for variation of the Injunction to operate until further order; to set a timetable for the filing of a defence and further pleadings; and to seek the second listing of an urgent trial.38 49 On 24 February 2025 I heard the application to vary the Injunction to operate until further order and for an urgent trial. I ordered: the Injunction extended to 12 March 2025; the Landlord file a defence by 3 March 2025; Nordburger file a reply by 10 March 2025; the application for security be heard on 12 March 2025; the parties make discovery by 24 March 2025; and for a second urgent trial to be listed to commence 29 April 2025.39 50 On 3 March 2025 the Landlords filed a defence as ordered.40 51 On 6 March 2025, the solicitors for Nordburger applied ex-parte to cease to act.41 Given the impact that might have had, I heard the application that day.42 Mr Martin, as a director of Nordburger, was granted leave to be heard. Mr Martin is an admitted legal practitioner with no right to practice. 52 Solicitor Ms Daniel deposed her firm had agreed only a limited engagement with Nordburger. She deposed she had held sufficient funds to enable counsel to 37 Amended Statement of Claim (Rev 1), 14 February 2025, FDN 34. 38 Interlocutory Application, 17 February 2025, FDN 35. 39 Record of Outcome, 24 February 2025, FDN 41. 40 Defence, 3 March 2025, FDN 43. 41 Interlocutory Application, 6 March 2025, FDN 44; Affidavit of Jasmine Daniel, 4 March 2025, FDN 45. 42 At the request of those solicitors and Mr Martin, I sealed the application, affidavit and transcript. It has now been unsealed at the request of Nordburger which wished to rely on what was said during that hearing in support of its later application that I recuse myself from hearing this matter. -- 9 of 29 -- [2026] SADC 61 8 attend on 11 and 18 February 2025 and to prepare an amended claim and applications for an urgent trial and extension of the Injunction.43 53 Ms Daniel deposed when the urgent trial was listed for 29 April 2025, consistent with her retainer, she provided an estimate of fees to trial. She deposed Nordburger would not deposit in trust the trial fee estimate by the date required and her firm could not engage counsel for trial, nor continue to act.44 54 Nordburger opposed the application and argued its solicitors had accepted a retainer to trial and been secured. Alternatively, it argued the estimate excessive and unnecessary to be in advance, as the trial was weeks away. 55 I granted leave to the solicitors to cease to act.45 56 Thereafter, Mr Martin was granted leave as a director to represent Nordburger. As for whether he would be granted leave to do so at trial was left to be determined. Commencing on 31 March 2025, I made repeated orders Nordburger make a formal application about that. Nordburger did not do so. 57 At a hearing for directions the following day on 7 March 2025, Mr Martin told me Nordburger, acting as a self-represented litigant, had been unsuccessful that day in filing lengthy documents, including an urgent application for summary judgment.46 Neither I nor counsel for the Landlords had seen those documents. Mr Martin was insistent those applications be dealt with that day. 58 That insistence was remarkable in circumstances where Nordburger had been ordered to file any reply by 10 March 2025; the application for security was listed on 12 March 2025; discovery had been ordered by 24 March 2025; and the second urgent trial was listed to commence on 29 April 2025. 59 Mr Martin asserted Nordburger entitled to summary judgment by declaration the termination and re-entry of the premises was unlawful and invalid and the Lease had not been forfeited and remained in force. He submitted that application (not filed) should be heard prior to trial of the action. 60 I informed the parties the security for costs application would still be heard on 12 March 2025, but by another judge.47 I listed a further hearing for directions on 13 March 2025 and extended the Injunction until that day.48 43 Affidavit of Jasmine Daniel, 4 March 2025, FDN 45. 44 Ibid. 45 Record of Outcome, 6 March 2025, FDN 46. 46 Interlocutory Application, 7 March 2025, FDN 48. 47 Transcript, 7 March 2025, T4.12-22; I considered that information provided to me in the course of the application of the solicitors to cease to act was such that I should not hear the application for security for costs. 48 Record of Outcome, 7 March 2025, FDN 49. -- 10 of 29 -- [2026] SADC 61 9 61 On 12 March 2025, Nordburger filed its reply and Judge Burnett heard the application for security for costs49 and reserved judgment.50 62 On 13 March 2025, at a hearing for directions, I extended the Injunction to 21 March 2025.51 63 The application for summary judgment Nordburger said it tried to file on 7 March 2025, had by then been filed. I ordered Nordburger file by 18 March 2025 a written outline about whether that application raised a proper matter for summary judgment. I listed that issue for hearing on 21 March 2025.52 64 On 21 March 2025, Judge Burnett found Nordburger should pay security for costs, as it was unable to meet adverse costs in favour of the Landlords.53 65 On 21 March 2025, I heard the parties as to whether Nordburger had raised a proper matter for summary judgment.54 I fixed a hearing for directions on 31 March 2025 and extended the Injunction to then.55 66 On 26 March 2025, Judge Burnett ordered Nordburger pay security for costs in the amount of $42,500.56 He referred the question of any stay in default to me.57 67 On 31 March 2025, I ruled Nordburger had not pleaded the issue the subject of its summary judgment application and declined to hear it further.58 Nordburger had failed to comply with repeated orders it file any further amended claim. 68 Nordburger by its representative Mr Martin raised orally at that hearing several other matters he said should be dealt with urgently by the court. 69 Mr Martin asserted scandalous allegations against the Landlords and agents of fraud and contempt. None of those matters were pleaded, nor the subject of sworn evidence. They remain unpleaded. 70 Mr Martin also intimated an application would be made by Nordburger that I should recuse myself from further hearing this case, for judicial bias. 71 I ordered any applications for recusal or contempt, any amended claim and application Mr Martin represent Nordburger at trial, be filed by 4 April 2025.59 49 Record of Outcome, 12 March 2025, FDN 58. 50 Reply, 12 March 2025, FDN 53; Record of Outcome, 13 March 2025, FDN 54. 51 Record of Outcome, 13 March, FDN 54. 52 Ibid; see also Written Submissions of Nordburger, 18-19 March 2025, FDN 59-60. 53 Record of Outcome, 21 March 2025, FDN 65; Record of Outcome, 26 March 2025, FDN 69; Nordburger No.2 (n 6). 54 Record Of Outcome, 21 March 2025, FDN 65. 55 Ibid. 56 Record of Outcome, 26 March 2025, FDN 69. 57 Judge Burnett has had no further involvement in this case. 58 Unpublished Ruling of Judge Durrant, 31 March 2025, FDN 68. 59 Record of Outcome, 31 March 2025, FDN 71. -- 11 of 29 -- [2026] SADC 61 10 72 The Landlord was concerned about the adequacy of Nordburger’s discovery, and I ordered any application about that also be filed by 4 April 2025.60 73 I extended the Injunction to 7 April 2025; the next date for directions.61 74 By that hearing on 7 April 2025, Nordburger had not, in breach of orders made, filed any application for recusal or the asserted contempt, any amended pleading or application Mr Martin represent Nordburger at trial.62 75 Nordburger had filed its list of documents, but it had not produced those documents. As I understand it, that remains the case, over 13 months later.63 76 I ordered Nordburger by 9 April 2025 produce by internet file share those documents and discover and produce further and better discovery, which I had previously ordered pursuant to the application of the Landlord.64 77 I further extended the time to 9 April 2025 for Nordburger to file any further amended Claim, granted Mr Martin permission to represent Nordburger at a hearing for directions on 11 April 2025, and extended the Injunction until then.65 78 Nordburger did not, in breach of orders made, by 9 April 2025, produce the documents it had discovered, make further and better discovery, or file any application for recusal or leave to file an amended Claim. 79 On 11 April 2025, when the hearing for directions was called on, Mr Martin said Nordburger needed further time. I extended until 14 April 2025, the time to produce the documents discovered and provide further and better discovery.66 I extended the Injunction until the hearing for directions on 16 April 2025 and granted Mr Martin permission to represent Nordburger at that hearing.67 80 At the hearing for directions on 16 April 2025, Mr Martin said Nordburger had not produced the documents discovered but was ‘working through that still’.68 He said he had drafted but not filed a further amended claim. He said he had filed an application for recusal; that was not the case.69 Mr Martin asserted orally the Landlords had failed to provide proper discovery. 60 Interlocutory Application, 4 April 2025, FDN 72; Seventh Affidavit of Luke Barnett, 4 April 2025, FDN 73. 61 Record of Outcome, 31 March 2025, FDN 71. 62 Record of Outcome, 7 April 2025, FDN 76. 63 Record of Outcome, 20 April 2026, FDN 132. 64 Record of Outcome, 7 April 2025, FDN 76. 65 Ibid. 66 Record of Outcome, 11 April 2025, FDN 77. 67 Ibid. 68 Transcript, 16 April 2025, T3.11. 69 That application was rejected by the Registrar and remains unfiled. -- 12 of 29 -- [2026] SADC 61 11 81 Mr Martin submitted the second urgent trial should be vacated and the time set for that trial should be used to hear the application for recusal. He made oral application to extend the Injunction until further order. 82 The Landlord accepted the second urgent trial should be vacated due to the defaults of Nordburger. It opposed extension of the Injunction until further order. 83 I vacated the second listed urgent trial but refused to extend the Injunction until further order.70 I made orders: listing the recusal application on 29 April 2025; any further evidence concerning the recusal application be filed by 22 April 2025; any further amended claim be filed by 22 April 2025; any written submissions of Nordburger in respect of the recusal application be filed by 24 April 2025; any submissions or material in reply be filed by 28 April 2025; Nordburger produce in proper form any documents currently discovered by 22 April 2025; and the Injunction be extended to 29 April 2025. 84 I ordered the costs of attendance of that hearing and the costs thrown away due to the vacation of the second urgent trial be reserved.71 85 Nordburger did not comply with the orders made. It did not file further evidence concerning the recusal application, any further amended statement of claim or written submissions in respect of the recusal application. Nor had it produced the documents it had discovered. 86 The Landlords had filed written submissions on the recusal application.72 87 At 9.13am the day the application for recusal was listed to commence (29 April 2025 at 10am), my Associate received an email from Mr Martin: 'Dear Associate. I am unwell today and will not be able to attend or participate in the scheduled hearing before [Judge Durrant]. I apologise for the late notice. Please convey my apologies to his Honour. I respectfully request that today's argument be adjourned until either tomorrow afternoon or Thursday, 1 May. I have a medical appointment tomorrow from 9.45 a.m. for approximately for approximately one hour. I could thereafter be available from 11.30 a.m. Kind regards, Tom Martin’. 88 I ordered:73 (1) the Injunction be further extended until 7 May 2025; (2) Nordburger provide a medical certificate in respect of the non-attendance of Mr Martin by 1 May 2025; (3) Nordburger apply by 1 May 2025 with supporting evidence for its application for judicial recusal to be listed; (4) Nordburger by 1 May 2025 file any application to extend the Injunction; (5) a directions hearing on 7 May 2025 at 9am; (6) Mr Martin have leave to appear at the directions hearing in person; and (7) the costs of the hearing be reserved. 70 Record of Outcome, 16 April 2025, FDN 83. 71 Ibid. 72 Written Submissions, 28 April 2025, FDN 84. 73 Record of Outcome, 29 April 2025, FDN 85. -- 13 of 29 -- [2026] SADC 61 12 89 On 1 May 2025, Nordburger provided a doctor’s letter recording Mr Martin had not attended due to a medical issue. Mr Martin deposed detail about his mental health and why Nordburger had not complied.74 90 Mr Martin had been afforded accommodation to attend by telephone. Hearings had been fixed to accommodate his family arrangements. 91 On 7 May 2025, there was no appearance by Nordburger. After the scheduled hearing had commenced Mr Martin requested by email at 9.30am, to appear by phone.75 I adjourned so he could be dialled in and the hearing reconvened. 92 Mr Martin said he had attempted since the last hearing to file documents, but they had been rejected. Those documents did not relate to the orders made and breached and further extended. Those documents related to his previously raised unpleaded and scandalous assertions of fraud.76 93 I ordered the recusal application be heard on 16 May 2025, and the Injunction be extended to that date.77 94 The day before that hearing Nordburger filed lengthy written submissions in respect of the recusal application.78 95 On 16 May 2025, Mr Martin appeared and argued that application. While his oral submissions took the whole day, Mr Martin said he had not finished. I allowed him to file further written submissions by 23 May 2025. I fixed a further hearing on 26 May 2025, so counsel for the Landlord could make oral submissions.79 96 On 23 May 2025, Nordburger did file further submissions about the recusal.80 97 On 26 May 2025, the date fixed to hear the Landlord on the recusal, Nordburger did not attend. No notice of that non-attendance was given and it remains unexplained. I resolved to continue in the absence of Nordburger. 98 I heard counsel for the Landlord and ordered Nordburger file any written submissions in reply by 29 May 2025 and instructed Nordburger be provided with the transcript. No submissions in reply were filed by Nordburger. 99 On 16 June 2025, I refused the application for recusal.81 74 Sixth Affidavit of Thomas Martin, 2 May 2025, FDN 87. 75 The hearing had already commenced when my associate received that correspondence. 76 Transcript, 7 May 2025, T13.15-33; Transcript, 10 July 2025, T127. 77 Record of Outcome, 7 May 2025, FDN 89 78 Written Submissions, 15 May 2025, FDN 90. 79 Record of Outcome, 16 May 2025, FDN 91. 80 Written Submissions, 23 May 2025, FDN 92. 81 Nordburger (No.3) (n 7). -- 14 of 29 -- [2026] SADC 61 13 100 On 30 June 2025, the Landlord applied for the Injunction to be discharged or not further varied.82 The Landlord relied upon several affidavits.83 101 The listing and determination of that application was not straightforward. 102 I listed the application to discharge for hearing on 10 July 2025.84 I ordered: the Landlord file its affidavit evidence by 30 June 2025; Nordburger file any amended pleadings, applications and further disclosure by 4 July 2025; and Nordburger file by 8 July 2025 any responding material. 103 The orders made were intended to allow Nordburger to raise by way of pleading and admissible evidence its case to be considered as part of the application to discharge or extend the Injunction. 104 Nordburger did not file any amended pleadings or applications. Nor did it comply with the order it provide further disclosure by 4 July 2025 or file by 8 July 2025 responding material in respect of the discharge. 105 On the day of the hearing of the application to discharge and shortly prior to its commencement, Nordburger filed an application and lengthy affidavits totalling over 110 pages, seeking multiple orders.85 106 Nordburger submitted the Injunction be extended until further order and ‘preliminary issues’ be determined prior to the application to extend the Injunction, and by no later than 14 August 2025. 107 Those ‘preliminary issues’ were enumerated as (1) the Landlords compliance with its discovery obligations; (2) the lawfulness of the entry of the premises by the Landlords and validity of its notice of termination (3) repayment of property management fees (4) and an asserted contempt by the Landlords. 108 The lawfulness of the entry of the premises by the Landlords had been the subject of the application for summary judgment. As that was unpleaded, I had declined to hear that application. That issue remained unpleaded. 82 Interlocutory Application, 30 June 2025, FDN 102. 83 First, Second, Third and Fourth Affidavits of Luke Peter Barnett, 12 December 2024, 24 January 2025, 30 June 2025, 7 March 2025 FDN 8, FDN 20, FDN 50, FDN 103; First Affidavit of Andrew Caruso, 7 March 2025, FDN 52; Affidavit of Rinaldo Pancione, 30 June 2025, FDN 101; First Affidavit of Victoria Martin, 29 November 2024, FDN 3; First, Second, Fourth (unsworn) and Sixth Affidavits of Thomas Martin, 12 December 2024, 14 February 2025, 16 April 2025, 2 May 2025, FDN 9, FDN 36, FDN 79, FDN 87. 84 Record of Outcome, 26 June 2025, FDN 100. 85 Interlocutory Application, 10 July 2025, FDN 107; Seventh and eighth Affidavits of Thomas Patrick Martin, 7 July 2025, 8 July 2025, FDN 105, FDN 106; Fourth Affidavit of Victoria Mary Martin, 9 July 2025, FDN 108. -- 15 of 29 -- [2026] SADC 61 14 109 Orders had previously been made and extended that any application relating to fraud and contempt be brought. Nordburger had first asserted an unpleaded fraud on 7 May 2025 and contempt on 31 March 2025.86 110 Claims for repayment of property management fees had not been pleaded. 111 Nordburger requested those ‘preliminary issues’ be dealt with urgently before the application to discharge the Injunction.87 In the interim, Nordburger submitted the Injunction should be extended until further order. 112 Nordburger made that request after it had repeatedly not applied itself to compliance with court timetables. Asked whether it would bring an application for urgent trial, Mr Martin made it clear, ‘no, not at this stage’.88 113 I declined to adjourn or delay the application to discharge the Injunction. 114 I have carefully considered the whole of the chronology of this action and the conduct of Nordburger. I have concluded Nordburger failed to comply with its overarching obligations and conducted itself in a manner designed to delay and frustrate the two urgent trials listed, and the progress of this action generally and the application to discharge the Injunction. 115 In the Discharge Decision a relevant factor was when this action would be listed for trial. I noted and concluded: No urgent trial is now sought by Nordburger. It is not certain when a trial in this action will be listed in the ordinary course. Given its history and for several other reasons, I do not consider a trial in this action is likely to take place this year. There is much interlocutory action to come. While Nordburger has not availed itself of several opportunities to amend its pleadings, it is likely Nordburger will eventually seek to amend its pleadings. Particularly, if Nordburger wishes to agitate the asserted fraud by the property manager, that will need to be attended to with specificity and skill.89 Nordburger has been represented by its director Mr Martin. He has not demonstrated the ability and diligence required to properly, effectively and efficiently prosecute this action. Nordburger has consequently failed to prosecute the proceedings expeditiously or comply with timetables and orders. For example, Nordburger has yet to produce some of its discovery and has not complied with court orders it do so. 86 Transcript, 10 July 2025, T9.18-T10.23. 87 Ibid T18-T20.34, T21.17-T22.17. 88 Ibid T11.7-11. 89 Banque Commerciale SA (in Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 [285]-[286] per Mason CJ and Gaudron J; Lawcover Insurance Pty Ltd v Muriniti [2017] NSWSC 1557 [195] per Sackar J. -- 16 of 29 -- [2026] SADC 61 15 Nordburger will need to make application if it wishes Mr Martin or the other director Mrs Martin to represent it at trial. There is no right in this court to self-representation. Nordburger will need to satisfy the court it is in the interests of justice to give such leave.90 If solicitors are appointed, they will need time to review this action and may wish to replead or take a different approach. 116 The conduct of Nordburger following the hearing of the application to discharge the Injunction and since the discharge, reinforces my conclusion as to the conduct of Nordburger and that this action is unlikely to progress to trial until 2027. 117 No application has yet been made by Nordburger to amend its Claim. No application had been made by Nordburger to have its application for determination of the ‘preliminary issues’ dealt with. 118 On 20 April 2026, a Directions Hearing was convened by Associate Judge Olsson. There was no appearance for Nordburger by counsel or either of its directors.91 119 The court had been told by Mr Martin he was in a case in the Federal Court. No reason was given why Mrs Martin, the other director could not attend. The Record of Outcome of the Associate Judge recorded court attempts to telephone Mr Martin had been unsuccessful. 120 The Landlords counsel advised Nordburger had continued to fail to comply with the orders I had made in April 2025 for discovery and production and there were outstanding applications by both parties regarding discovery. No explanation was proffered by Nordburger to explain its continuing default. 121 The Associate Judge adjourned directions to 18 May 2026 and ordered any applications for discovery and amendment of pleadings be filed by 11 May 2026. 122 Nordburger did not file as ordered any applications by 11 May 2026. 123 At the hearing for direction on 18 May 2026, the time within which Nordburger was to bring an application to amend its claim was extended until 29 May 2026. The question of discovery was deferred until the pleadings are settled. A directions hearing was listed for 15 June 2026. 124 It is a relevant matter to my consideration that Mr Martin is a legal practitioner. He filed comprehensive and lengthy written submissions and drew on his practice experience to make detailed oral submissions. That goes to my assessment of the compliance of Nordburger with its overarching obligations. It also informs my consideration of the submissions of the Landlords that Nordburger ought to have known some parts of its claim and applications had no merit. 90 UCR (n 16) r 25.6. 91 Record of Outcome, 20 April 2026, FDN 132. -- 17 of 29 -- [2026] SADC 61 16 Costs up to and including 11 February 2025 (including costs of the Injunction and thrown away because of the vacation of the first urgent trial) 125 The vacation of the first urgent trial was solely the fault of Nordburger. 126 Nordburger were though represented by solicitors and counsel at that time, who advocated for or agreed to the timetable which they ultimately did not met. 127 Given that, I do not consider it appropriate to exercise my discretion in respect of the costs of the vacation of the first urgent trial, beyond the usual approach. Nor do I consider those costs should be payable forthwith. 128 It is not contended any non- party should pay those costs. 129 I will order Nordburger pay the costs of the Landlord of the vacation of the first urgent trial thrown away to be taxed if not agreed, up to and including 11 February 2025, on the usual or standard basis. For the benefit of the taxing officer of this court, each hearing or attendance at court during that period is certified as fit for counsel and instructing solicitor. Costs thrown away by vacation of the second urgent trial, including the hearing on 16 April 2025 130 As for the hearing on 16 April 2025; it was a complete waste of time due to the defaults of Nordburger. Nordburger had not produced the documents it discovered and had not filed a further amended claim or application for recusal.92 131 I will exercise my discretion to order Nordburger pay the costs of and incidental to that hearing on an indemnity basis. For the assistance of any taxing officer, those costs should include the costs of attendance of any instructing solicitor and is certified fit for counsel. 132 Those costs should be taxable and payable forthwith because this matter is unlikely to get to trial until 2027. 133 As for the costs thrown away by vacation of the second urgent trial, the seeds of the incurring of those costs were watered when Nordburger applied for a second listing. They were drenched by Nordburger as a self- represented litigant. 134 That conduct is exemplified by the directions hearing on 7 March 2025 when Nordburger had attempted unsuccessfully earlier that day to file lengthy documents, including an urgent application for summary judgment.93 135 By the hearing for directions on 13 March 2025, the application for summary judgment had by then been filed and a timetable was set. The application was bound to fail. On 31 March 2025, I ruled Nordburger had not pleaded the issue the 92 That application was rejected by the Registrar and remains unfiled. 93 Interlocutory Application, 7 March 2025, FDN 48. -- 18 of 29 -- [2026] SADC 61 17 subject of its application for summary judgment and dismissed that application.94 The application and its prospects of success must be seen against the multiple opportunities given to Nordburger to amend its pleadings. 136 Nordburger by Mr Martin then raised orally several other matters relevant to the progress of this action which would obviously, if addressed, delay the action and cause vacation of the second urgent trial. Having raised making an application concerning recusal and a contempt, no such applications were brought by Nordburger within the time ordered. The timing of that announcement, when the application for summary judgment had just been dismissed, and that failure to actually make those applications is telling. 137 Those failures and non-compliance with orders made the vacation of the second urgent trial a certainty, particularly given the nature of recusal applications. 138 I ordered any applications for recusal or a contempt, any amended claim and any application Mr Martin represent Nordburger at trial be filed by 4 April 2025. I did so as I considered the recusal question had to be dealt with urgently given the second urgent trial.95 139 By 7 April 2025 though, Nordburger had not filed any application for recusal or breach of the Injunction, to any amended pleading or make application Mr Martin represent Nordburger at the second urgent trial.96 I extended the time to 9 April 2025 for Nordburger to file any further amended Claim.97 140 Nordburger had filed its list of documents but, in breach of orders made on 9 April 2025, had not produced the documents it had discovered. Nordburger is still to fulfil that obligation. That is an egregious default. Nor has it made further and better discovery. It did not file any application for recusal or seek leave to file a further amended Claim within the time ordered. 141 On 11 April 2025, when the hearing for directions was called on, Mr Martin told me further time was needed to comply. I extended until 14 April 2025, the time to comply with the orders to produce and for further and better discovery.98 I extended the Injunction until the hearing for directions on 16 April 2025 and granted Mr Martin permission to represent Nordburger at that hearing.99 142 At the hearing for directions on 16 April 2025, Mr Martin said Nordburger had not yet produced the documents discovered but was working to do so. No detail was provided. The attitude displayed a lack of urgency, and a wanton 94 Unpublished Ruling of Judge Durrant, 31 March 2025, FDN 68. 95 Record of Outcome, 31 March 2025, FDN 71. 96 Record of Outcome, 7 April 2025, FDN 76. 97 Ibid. 98 Record of Outcome, 11 April 2025, FDN 77. 99 Ibid. -- 19 of 29 -- [2026] SADC 61 18 disregard for the timetable set. He said he had drafted but had not filed a further amended claim. 143 Mr Martin said Nordburger had filed an application for recusal, but when checked during the hearing, it was not on the court portal.100 144 Mr Martin submitted the second urgent trial should be vacated. He suggested the time set aside for that trial be used to hear the application for recusal. He made oral application to extend the Injunction until further order. That would have allowed continued occupation of the premises, and that is relevant to my consideration of the motivation of Nordburger and its conduct. 145 Having considered that chronology and the conduct of Nordburger there are grounds to order it pay the costs of the Landlords of the second urgent trial thrown away on an indemnity basis to be taxed and payable forthwith. 146 In reaching that conclusion, I have had regard to the conduct of the action by Nordburger after vacation of the second trial and up to date. That goes to my conclusion this action has not and will not advance in the ordinary way to trial and determination. That is the continuing fault of Nordburger. At all times the Landlords by contrast have diligently complied with court orders and been ready. 147 I will make orders Nordburger pay the costs of the Landlords of the second urgent trial thrown away on an indemnity basis to be taxed and payable forthwith. 148 The Landlords submit these proceedings share many relevant similarities with the position in Heath v Greenacre Business Park Pty Ltd.101 149 In that case, a corporate lessee had been sued for outstanding rent and advanced a cross-claim. A non-party costs order was sought against the director of the lessee company. Gleeson JA held the director ought to pay the costs of the proceeding from a particular date, including on an indemnity basis. 150 Of particular relevance was the non-party: (1) was a director of the lessee; (2) verified pleadings filed by the lessee; (3) made an affidavit; (4) represented the lessee after the lessee’s solicitors filed a notice of ceasing to act; (5) and had an indirect interest in the lessee and outcome of the proceedings.102 151 Further, it was found, if not impecunious, the lessee faced significant financial difficulties in meeting its costs of the litigation, let alone those of the other party should it be unsuccessful. In that context, Gleeson JA said: [87] In my view, the appellant as a director of the Lessee had no reasonable prospect of defending the proceedings or succeeding on the cross-claim in the face of the respondents’ reply affidavits, which the Lessee had not sought to contradict. Further, the appellant acted irresponsibly as a director of the Lessee in not accepting the inevitable by consenting to judgment no later than 30 May 2014. 100 That application was rejected by the Registrar and remains unfiled. 101 Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 per Gleeson JA. 102 Ibid [84]. -- 20 of 29 -- [2026] SADC 61 19 Instead, he allowed the risk of a likely costs order against the Lessee to continue unabated, with the consequence that the quantum of the Lessee’s potential liability increased, as did the likelihood that costs would be awarded against it on an indemnity basis. The inevitable occurred when the liquidator of the Lessee consented to an order for costs against the Lessee on an indemnity basis on 17 November 2014. Making allowance for the appellant being a non-lawyer, and affording him a reasonable period in which to consider the respondents’ reply evidence, make further enquiries and seek legal advice, in my view, the appellant acting reasonably should have been in a position to assess and conclude that the defence and cross claim had no reasonable prospects by no later than the directions hearing on 30 May 2014. The appellant’s conduct in maintaining the proceedings after that date was so unreasonable that he should be required to pay the respondents costs from that date to the final hearing on 17 November 2014. 36. Notice to a third party of a possibility of a non-party costs order being sought is no more than one of many relevant matters that should be considered when considering an application for costs against a non-party. 152 Every case turns on its own facts. I consider this to be an appropriate case to exercise my discretion and make a non-party costs order against Mr Martin. 153 Mr Martin has been given leave, as he requested, to represent Nordburger as a director since 7 March 2025. He has filed or made numerous interlocutory applications, attended hearings and represented Nordburger, made written and oral submissions and filed and swore affidavits in his own name. 154 I accept the submission of the Landlords in those circumstances his conduct has been causative of significant additional costs and delay which I have detailed. 155 Unlike in Heath, Mr Martin is a legal practitioner and any leniency due to the conduct of a director representing a corporate litigant as a self-represented litigant is not available. Mr Martin as a legal practitioner has pursued applications late and for which Nordburger had no proper pleaded basis. He has made scandalous allegations of fraud without any pleading. He has conducted the proceedings by repeatedly breaching court orders. Mr Martin was aware of and understood the legal issues enlivened in this case and his overarching obligation to comply with court orders and be ready. 156 Putting aside his legal qualification, the conduct of Mr Martin as representative is sufficient to justify a non-party costs order against him. The default of Court orders, his tardiness and lateness in filing of documents and his disregard for the overreaching obligation has been egregious. 157 There is also evidence Nordburger is impecunious. 1. Mr Martin has deposed to the financial inability of Nordburger to engage solicitors and that the directors ‘will likely be left with crippling personal debts from guarantees and statutory liabilities’.103 103 First Affidavit of Thomas Martin, 9 December 2024, FDN 9, [37]; Fourth Affidavit of Thomas Martin, 15 April 2025, FDN 81, [4]-[11]. -- 21 of 29 -- [2026] SADC 61 20 2. Judge Burnett has previously determined Nordburger will be unable to meet an adverse costs order.104 3. The sum in court of $42,500 will now, given the likely further delay, be exceeded by the future costs of this litigation. 4. The draft financial statements of Nordburger for the year ended 30 June 2023 disclose a net asset position of approximately $2.25 million.105 Of that $3.4 million is owed by related entities Nordburger Capital Pty Ltd, Nordburger Chinatown Pty Ltd and Nordburger Norwood Pty Ltd.106 The financial statements of those entities indicate insufficient assets to repay those loans, in full or at all.107 5. Nordburger has transferred all its plant, equipment, leasehold improvements, intellectual property and liquor licenses to the NH Trust for $10 consideration.108 6. Nordburger otherwise owns no real property.109 7. Nordburger has disclosed to this court that an action it had taken to set aside a statutory demand issued by the ATO, has been dismissed.110 8. Freezing orders previously made and undertakings given in the Federal Court mean Nordburger is not to dispose of assets beyond its ordinary business.111 158 Further, Mr Martin has been funding the litigation from personal funds. He deposed in April 2025, he and his wife had paid the money into court, to comply with the order for security for costs, from their own funds.112 They also personally funded Nordburger’s solicitors in the past.113 159 Mr Martin has a clear interest in the outcome of this action. He and Mrs Martin have potentially crippling personal debts as directors if it fails.114 They have paid $285,000 from their own funds to the ATO on behalf of Nordburger.115 Mrs Martin is also a substantial creditor in respect of wages owed.116 104 Nordburger No.2 (n 6) [18]-[26] per Judge Burnett. 105 Ninth Affidavit of Luke Barnett, 30 June 2025, FDN 103, [15]-[17]. 106 Ibid. 107 Ibid. 108 Ibid [136]; Clause 3 of the Deed of Restructure. 109 Ibid [9]. 110 Ibid [13]-[14]. 111 Fourth Affidavit of Thomas Martin, 15 April 2025, FDN 81, [4]-[11]. 112 Ibid [10]. 113 First Affidavit of Thomas Martin, 9 December 2024, FDN 9, [37]. 114 Ibid. 115 Second Affidavit of Thomas Martin, 14 February 2025, FDN 36, [28]. 116 First Affidavit of Thomas Martin dated 9 December 2024, FDN 9, [37]. -- 22 of 29 -- [2026] SADC 61 21 160 For all those reasons, I exercise my discretion to order Mr Martin be personally liable to pay the costs of the Landlords of the second urgent trial thrown away on an indemnity basis to be taxed and payable forthwith. Costs of the summary judgment application 161 The application was unsuccessful as its subject had not been pleaded. Nordburger had passed up numerous opportunities to amend its pleadings and knew the urgent second trial was to commence on 29 April 2025. The proximate cause of the incurring of the costs of that application was its failure to plead that subject issue.117 162 As I already noted, the principal proceedings are not likely to be resolved for some time and the Landlords will not recover their costs for a long period.118 163 The application was futile without an amendment to the pleading. If it had been pleaded, the application would have been unnecessary as that issue could have been determined at the second urgent trial. 164 I will order Nordburger pay the costs of the summary judgment application on an indemnity basis and those costs be taxed and payable forthwith. 165 For the same reasons as already noted, I exercise my discretion to order Mr Martin also pay those costs. Costs of hearings on 29 April 2025, and 7 May 2025 166 In so far as the costs of the hearings on 29 April 2025 and 7 May 2025 are not incorporated into other orders made, I will deal with them separately. 167 After the second urgent trial was vacated, the listed date of 29 April 2025 was utilised to hear the recusal application. 168 As already noted, at 9:13am that day, about 45 minutes before the hearing, Mr Martin emailed the Court advising he was unwell and unable to attend. No indication was made when Mr Martin had determined he was so unwell. 169 Mr Martin did not explain why Mrs Martin could not appear, nor why Nordburger had not filed sworn evidence or submissions in support of the recusal application as required. 170 I consider, given that later Nordburger filed affidavit evidence in support of that application and relied on extensive written submissions, Nordburger was not ready. No reason for the non-compliance and lack of readiness has been proffered. 171 The Landlords were ready to go. I do consider in the circumstances, the cost of preparation for and attending the 29 April 2025 hearing are costs which were 117 Ibid [12]. 118 Life Airbag Company (n 30); Allstate Life Insurance (n 30); Fiduciary Limited (n 32). -- 23 of 29 -- [2026] SADC 61 22 thrown away by reason of Nordburgers conduct and such costs ought to be payable by Nordburger on an indemnity basis to be taxed and payable forthwith. 172 As for the hearing on 7 May 2025, Nordburger and Mr Martin did not comply with the orders made that Mr Martin appear in person and Nordburger did not file and serve an application and supporting affidavit in relation to setting a date for the recusal application and extending the Injunction. 173 At 9:30am during the hearing Mr Martin emailed the Court requesting permission to appear by telephone, and he was called by the Court. Remarkably, Mr Martin then raised matters which did not relate to the recusal application or any of the previous defaults the subject of extension or his continuing defaults. 174 The Landlords are entitled to have their costs of and incidental to that hearing on an indemnity basis to be taxed and payable forthwith. 175 For the same reasons as already noted, I exercise my discretion to order Mr Martin also pay those costs. Costs of the recusal application 176 There are no special rules in respect of the award of costs for recusal applications.119 Recusal application are serious matters and it was appropriate to deal with the application promptly and before trial. 177 I have considered nonetheless the late stage at which that application was made in my assessment of appropriate orders as to costs. The application came after repeated failures to comply with orders made and with an urgent trial listed and the Injunction in place. 178 The timing of that application impacted on my decision to vacate the second urgent trial. In considerable part, Nordburger and its representative, acted strategically and tactically to achieve the vacation of the second trial and the continuation of the Injunction. 179 The Landlords were properly entitled to take a position in relation to that application. It could have and ultimately did affect their interest in the conduct of an urgent trial and continuation of the Injunction well beyond the listing of the second urgent trial. That the application was then heard a month or so later than originally scheduled, was also entirely the fault of Nordburger. 180 The application failed for the reasons published.120 The Landlords should have their costs of that application. 119 Victorian Legal Services Board (n 33). 120 Nordburger No.3 (n 7); Record of Outcome, 16 June 2025, FDN 95. -- 24 of 29 -- [2026] SADC 61 23 181 The timing of the recusal application is relevant to whether costs should be on other than the ordinary scale. 182 The Landlords point to Mr Martin personally or on behalf of entities of which he is a director, or his wife Mrs Martin, having made multiple recusal applications in proceedings in which they have been involved in other courts.121 My assessment though must be limited to the circumstances of this case. 183 More pertinently, the Landlords point to the lack of strength of the application and that Nordburger and Mr Martin were well aware of the legal test to establish apprehended bias. The matters raised fell short of that threshold. 184 Having said that, parties to litigation are entitled to impartiality. I should be slow to and cautious about concluding the motivation of Nordburger in bringing the application was solely tactical such that other than an order for costs in other than in the usual terms should be made in respect of that application. 185 Exercising such caution, I decline to award the costs of the recusal application other than in the usual terms and against Nordburger only. To assist the taxing officer, I certify all attendances in respect of that application fit for counsel and instructing solicitor. Extension or discharge of the Injunction? 186 On the application for discharge and extension, I was satisfied of a deemed assignment arising from the transfer of shares in Nordburger without permission and a failure by Nordburger to effect insurance in respect of the premises, such as to disentitle Nordburger to renewal of its lease. 187 I found no serious question to be tried that Nordburger was entitled to renewal of its lease as a foundation upon which to continue the Injunction. 188 In any event, I was also satisfied the balance of convenience did not favour continuation of the Injunction. Particularly, I had regard to the procedural history as detailed and that no further application for an urgent trial had been made. 189 I also considered the undertakings as to damages proffered by Nordburger and Mr and Mrs Martin to be insufficient. 190 Following delivery of the Discharge Decision, the Injunction was discharged. 121 Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA; Martin v Norton Rose Fulbright Australia (No 7) [2020] FCA 5; Martin v Norton Rose Fulbright Australia (No 9) [2020] FCA 275; Hillier v Martin (No 2) [2021] FCA 509; Hillier v Martin (No 9) [2021] FCA 1319; Hillier v Martin (No 19) [2024] FCA 210; Hillier v Martin (No 20) [2023] FCA 1686; Hillier v Martin (No 22) [2025] FCA 507; Martin v Hillier [2025] FCA 567. -- 25 of 29 -- [2026] SADC 61 24 191 As the wholly successful party in respect of the discharge application and the application to extend the Injunction, I will order Nordburger pay the Landlords costs of and incidental to that application, certified as fit for counsel. 192 As for the scale of costs and if they should be taxed forthwith, I have considered the whole of the circumstances of this case. 193 To establish continuation of the Injunction, Nordburger had to establish a prima facie case in respect of all the defaults which the Landlords had pleaded as disentitling it to renewal of the Lease.122 The defaults relied upon involved an unauthorised assignment of shares and a failure to obtain insurance. 194 Properly advised, Nordburger ought to have known it could not succeed in satisfying the court to the requisite standard it had held Public Liability insurance.123 195 The Landlord had pleaded on 3 March 2025,124 Nordburger was in default of its lease from around December 2019, as it had not affected public liability cover. 196 Nordburger did not plead to that in its Reply. The default alleged was therefore taken to be denied.125 197 The terms of the lease were clear. Nordburger had to effect public liability insurance for $10 million in the ‘joint names of the Lessor and Lessee’.126 198 Nordburger provided discovery of all certificates of insurance for December 2019 to July 2023, in relation to insurance for the premises, as ordered.127 199 On 15 April 2025, Nordburger produced it documents relating to its insurance for the year ending on 20 December 2023.128 Nordburger was neither an insured nor an interested party in respect of any relevant Public Liability policy. 200 On 15 April 2025, the solicitors for the Landlords wrote to Nordburger pointing out it was not relevantly an insured. They requested Nordburger make discovery of the certificates of insurance and schedules of insurance in respect of that cover, for the period from December 2019 to December 2024.129 Nordburger did not respond and nor did it discover any further documents.130 When the 122 Nordburger No.4 (n 8) 27. 123 Ibid 28. 124 Defence, 3 March 2025, FDN 43, [21.3.4]. 125 Reply, 12 March 2025, FDN 53, [14]; UCR (n 16) r 67.7(4). 126 First Affidavit of Victoria Martin, 29 November 2024, FDN 3; exhibited (without being marked or paginated) to that affidavit is the Lease; see clause 1N and the Eleventh Schedule. 127 Interlocutory Application, 4 April 2025, FDN 72; Record of Outcome, 7 April 2025, FDN 76. 128 Ninth Affidavit of Barnett, 30 June 2025, FDN 103, 156; Being the relevant renewal period. 129 Ibid 168. 130 Ibid 55; I note also that the Lease in Clause 1N requires Nordburger to produce the relevant policy to the Landlord upon demand. -- 26 of 29 -- [2026] SADC 61 25 discharge application was heard, no documents evidencing public liability insurance held by Nordburger in respect of the Premises was before the court. 201 Nordburger did make several assertions it had not pleaded. 202 Nordburger asserted waiver of the relevant term of the lease. There was no evidence though produced to show the abandonment of the legal rights of the Landlord to require the relevant cover or not, to charge for insurance not effected, or of its right to refuse to renew in the event no cover was obtained. 203 Nordburger also relied (unpleaded) on s 26 of Retail and Commercial Lease Act 1995 (SA) that ‘it may be open’ the requirement for insurance in ‘joint names’ was waived as the Landlord demanded outgoings, otherwise than in accordance with the Lease. There was no evidence the Landlord had demanded outgoings other than in accordance with the lease. 204 Nordburger asserted (also unpleaded and without any evidence) the insurance schedule it had discovered was incomplete or incorrect. That was Nordburger’s own document provided to it by its own broker. 205 In the further alternative, Nordburger submitted clause 1(N) allowed for it to effect the required insurance in the name of other entities. That was contrary to the clear words of Clause 1N which required ‘[t]he Lessee will effect insurance’.131 That construction had no textual basis whatsoever. 206 In respect of whether there had been an unauthorised dealing in its shares, Nordburger had not pleaded, but asserted orally, a waiver of the contractual requirement to obtain lessee permission. 207 By its Defence, the Landlords had pleaded all the shares in Nordburger were transferred by its then sole shareholder, without consent of the Landlords.132 208 By its Reply, Nordburger did not dispute that transfer.133 It submitted a construction of the lease a deemed assignment would only occur if there was a transfer of the legal title to 50% of the shares and a ‘change in the beneficial entitlement thereto’ and to the ‘controlling interest therein’ and ‘practical control’. 209 That also had no textual basis in the lease. I considered for the purposes of whether there was a serious question to be tried each scenario was alternative and separate and the use of ‘and/or’ meant either of those things or all of them. 131 Ninth Affidavit of Barnett, 30 June 2025, FDN 103, 55; Clause 1N and Eleventh Schedule to the Lease. 132 Defence, 3 March 2025, FDN 43, [21.3.2]; Clause 1(P)1.0.4. 133 Reply, 12 March 2025, FDN 53, [14.2]. -- 27 of 29 -- [2026] SADC 61 26 210 There was therefore no serious dispute to be tried Mrs Martin had transferred 100% of her shares during the relevant period without the consent of the Landlords.134 211 Nordburger, to have succeeded in its claim the lease was renewed, had to establish a prima facie case in respect of all the disentitling defaults pleaded. 212 Nordburger had not established a serious question to be tried it was entitled to renew the lease, because it had failed to observe its terms. It had failed to obtain required insurance and it had assigned the lease without consent. 213 During that hearing, and throughout this action, Nordburger asserted scandalous unpleaded assertions of wrongdoing; particularly fraud. 214 The time and cost of the hearings about the discharge or extension of the Injunction and more generally, were prolonged as a result of that conduct, inconsistent with the overarching principles and the requirement to plead fraud with particulars. 215 Assessed against the conduct of Nordburger in the whole of this action and the delay caused by Nordburger in the hearing of the application for discharge, I consider the Injunction remained in place for longer than it should have. 216 Further, Nordburger had several opportunities to bring an application for an urgent trial to support the Injunction, and to amend its pleadings. 217 Nordburger caused by its conduct delay in the determination of the application for discharge and continued in occupation and use of the premises under the Injunction. That conduct was in breach of court orders, was egregious and contrary to the overarching principles. It is sufficient to justify a departure from the usual approach to costs. 218 I will order the cost of and incidental to the applications to discharge and extend the Injunction be payable by Nordburger on an indemnity basis. 219 I have concluded the expected length of time to the conduct of a trial in this matter is significant.135 The claim was filed in December 2024. The pleadings remain to be amended. Nordburger has been in default of its obligations going to discovery for some time. The conduct of this case since returned to the general list reinforces my conclusion it will be unlikely to reach a readiness for trial for some many months, if not years. 220 I consider it appropriate to order the costs of and incidental to the applications for discharge and extension of the Injunction be taxed and payable forthwith. I do 134 Second Affidavit of Victoria Martin, 9 December 2024, FDN 4, [5.12]-[5.16]. 135 Nordburger No.4 (n 8). -- 28 of 29 -- [2026] SADC 61 27 so because of the conduct of Nordburger and likely delay in the finalisation of this action due to that conduct. 221 For the same reasons as already noted, I exercise my discretion to order Mr Martin also pay those costs. 222 I will hear the parties as to the form of those orders. -- 29 of 29 --