District Court New South Wales Medium Neutral Citation: Aquaqueen International Pty Ltd v Titan National Pty Ltd [2014] NSWDC 79 Hearing dates: 28 May 2014 Decision date: 30 May 2014 Jurisdiction: Civil Before: Gibson Decision: (1) Summons dismissed. (2) Plaintiffs pay defendants' costs. (3) Liberty to apply in relation to costs. Catchwords: COSTS - Appeal pursuant to s 384 Legal Profession Act 2004 (NSW) - successful party's earlier application for indemnity costs on the basis of the manner of conduct of the proceedings refused - successful party later obtained indemnity costs order following refusal of its offer of compromise - whether trial judge's indemnity costs order correctly interpreted by Costs Review Panel - whether successful party was obliged under rr 42.2 and 42.7 UCPR to require the trial judge to set aside the earlier orders refusing indemnity costs - whether trial judge's judgment on costs (not provided to the Costs Review Panel) was inadmissible as fresh evidence - appeal dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW), s 384 Uniform Civil Procedure Rules 2005 (NSW), rr 26.20, 36.4, 36.11, 36.15, 36.16, 42.2, 42.7, 42.15A and 50.16 Cases Cited: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd (No 2) [2009] NSWSC 1409 Hammond v Hammond (No 2) [2010] NSWSC 377 Johnson v Madden t/as Maddens Solicitors [2000] NSWSC 463 Kable v State of New South Wales (No 2) [2012] NSWCA 361 McCausland v Surfing Hardware International Holdings Pty Ltd (2010) 11 DCLR (NSW) 294 Wentworth v Rogers (2006) 66 NSWLR 474 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2013] NSWCA 227 Texts Cited: - Category: Principal judgment Parties: First Plaintiff: Aquaqueen International Pty Limited (ACN 094 129 389) Second Plaintiff: Shirley Penson First Defendant: Titan National Pty Limited (ACN 092 896 029) Second Defendant: Kathryn Wood-Weber Third Defendant: Stephen John Lancken Fourth Defendant: Rosemary Workman Representation: Plaintiffs: Ms M Castle Defendants: Mr M L Brabazon SC Plaintiffs: (Direct Access) Defendants: Pure Legal File Number(s): 2014/17976 Publication restriction: None Judgment 1The plaintiffs by Further Amended Summons filed on 23 May 2014 (upon which I have granted leave to rely) appeal from a Costs Review Panel determination under s 384 Legal Profession Act 2004 (NSW) ("the Act") on the following sole ground: The review panel erred in determining that all costs orders in favour of the defendant were to be assessed on an indemnity basis. Particulars Reserved costs order of Judge McLoughlin on 10 August 2010; Costs order of Judicial Registrar Smith on 9 September 2010, confirmed on 31 September 2012; Costs order of Judicial Registrar Smith on 30 September 2010; Costs order of Judge Letherbarrow on 22 October 2010. 2The total of assessed costs is $111,416.95, but all other grounds of appeal have been abandoned. The amount covered by this sole remaining ground of appeal consists of the percentage of indemnity costs relating to an amount which the defendants say is $5,104.00, but which the plaintiffs say is a further $1,703.50. The parties did not indicate what percentage of these costs were likely to be costs on an indemnity basis, but did not disagree with my estimate that approximately 30% of these costs would be costs on an indemnity basis. Accordingly, if the defendants are correct, then the costs involved are 30% of $5,104.00, which is $1,531.20, while if the plaintiffs are correct, the total is $2,042.25 (($5,104.00 + $1,703.50) x 30%). 3By reason of the parties being able to substantially resolve all other issues, and the late abandonment of the principal grounds of appeal, the hearing proceeded somewhat informally. The defendants were meeting both the revised summons and these additional indemnity costs items "on the run", and I have accordingly listed these items individually in order to ensure that I have accurately reflected the additional sums read out by Ms Castle during her submissions. Both counsel proceeded on the basis that the precise amount involved being so small, it was not necessary for me to do more than note these differing calculations of the precise amount. 4Although the sum involved is extremely small, the issues of law are complex. I should formally note with thanks the very great assistance provided by both counsel in this matter in resolving many of the issues between the parties, and in relation to the issues arising in these proceedings. Judicial Registrar Smith Item No. Date Description Amount (excl GST) 126 30.7.10 Attending to review file in order to prepare affidavit - in particular reviewing correspondence and file notes in relation to procedural history of matterCommence draft Affidavit of Christine Perry sworn 3.8.10 in support of matter being listed for plaintiff to show cause as to why matter should not be dismissed for want of prosecution and deposing to background of matter, history of procedural conduct, issues in Statement of Claim and work to be performed - 25 folios in final formAttending to collate and copy annexures being correspondence (6)TR engaged 1 hour 42 minutes $465.00 128 2.8.10 Reviewing draft Affidavit of Christine Perry sworn 3.8.10 in support of matter being listed for plaintiff to show cause as to why matter should not be dismissed for want of prosecution and deposing to background of matter, history of procedural conduct, issues in Statement of Claim and work to be performed - 25 foliosMaking amendments to and settling sameCP engaged 18 minutes $135.00 129 2.8.10 Further amending Affidavit of Christine PerryYA engaged 18 minutes $84.00 130 3.8.10 Deponent solicitor attending to swear affidavitCP engaged 6 minutes $45.00 131 3.8.10 Attending to witness affidavit and to mark 6 annexuresYA engaged 12 minutes $56.00 132 3.8.10 Copies (4) - photocopied pages 4 x 11 - affidavitCopies (4) - photocopied pages 4 x 8 - annexures $38.00 133 3.8.10 Letter to District Court requesting listing of matter to show cause and enclosing affidavit - 1 folioYA engaged 6 minutes $28.00 134 3.8.10 Perusing Notice of Listing - 1 folioLetter to third defendant enclosing documents by way of service being Affidavit of Christine Perry and Notice of ListingYA engaged 6 minutes $28.00 135 3.8.10 Copy to enclose - photocopied pages 1 - Notice of Listing $0.50 136 3.8.10 Letter to Giles Payne & Co. enclosing document by way of service and advising of Directions Hearing - 1 folio (facsimile)Affidavit of Christine PerryNotice of ListingYA engaged 6 minutes $28.00 137 3.8.10 Facsimile out - pages 21 $21.00 138 3.8.10 Letter to Kathryn Wood-Weber advising affidavit filed and matter listed for show cause hearing - 1 folioYA engaged 6 minutes $28.00 171 20.9.10 Perusing letter from Judicial Registrar 20.9.10 advising of relisting of matter - 1 folioYA engaged 6 minutes $28.00 172 20.9.10 Letter to plaintiff advising of relisting of matter on 30.9.10 - 1 folio (facsimile)YA engaged 6 minutes $28.00 173 20.9.10 Facsimile out - page 1 $1.00 174 20.9.10 Letter to Kathryn Wood-Weber advising of plaintiff's change of solicitor and request for relisting; advising matter relisted - 1 folioYA engaged 6 minutes $28.00 177 21.9.10 Perusing letter from plaintiff 20.9.10 denying assertions made in letter to Judicial Registrar; advising plaintiff's categories of documents will be served by due date - 1 folio (facsimile)YA engaged 6 minutes $28.00 (reduced to $14.00 as 50% relates to other issues) 178 21.9.10 Facsimile in - page 1 $1.00 (reduced to $0.50 as 50% relates to other issues) 179 22.9.10 Perusing letter from plaintiff 22.9.10 noting receipt of letter dated 20.9.10 by mail and noting same not received by facsimile; objecting to correspondence being forwarded to plaintiff's registered office; advising address for service is as per address on letter head at Kurnell - 2 folios (facsimile)YA engaged 6 minutes $28.00 (reduced to $14.00 as 50% relates to other issues) 180 22.9.10 Facsimile in - page 1 $1.00 (reduced to $0.50 as 50% relates to other issues) Total $1,070.50 Letherbarrow SC DCJ Item No. Date Description Amount (excl GST) 202 14.10.10 Perusing letter from plaintiff 11.10.10 enclosing document by way of service - 1 folioPerusing Notice of Motion to strike out Defence - 1 folioYA engaged 6 minutes $28.00 205 14.10.10 Reviewing timetable and file in order to note plaintiff's failure to comply with same in preparation of letter to plaintiffLetter to plaintiff dated 15.10.10 referring to Notice of Motion and timetable ordered on 9.9.10; noting Notice of Motion was not served in accordance with the rules, the plaintiff has failed to comply with order 1; advising defendant has complied with order 1; noting previous failures by the plaintiff to comply with timetable; requesting motion be withdrawn and advising letter will be tendered in support of application for indemnity costs - 5 foliosYA engaged 1 hour $280.00 206 14.10.10 Copies for inclusion in counsel's brief - photocopied pages 2 $2.00 207 14.10.10 Perusing letter from plaintiff 14.10.10 enclosing document by way of service - 1 folioPreliminary perusal of Affidavit of Shirley Penson sworn 11.10.10 - 45 paragraphs plus annexuresPerusing Exhibit SP3 annexing pleadings filed in the proceedings, correspondence, flow chart of chronology - 98 pagesYA engaged 24 minutes $112.00 208 19.10.10 Perusing letter from plaintiff 18.10.10 requesting email dated 15.10.10 be sent by fax or post - 1 folio (facsimile)CP engaged 6 minutes $45.00 209 19.10.10 Facsimile in - page 1 $1.00 210 19.10.10 Copies for inclusion in counsel's brief - photocopied pages 1 $1.00 214 19.10.10 Attending on several occasions to fax to plaintiff letter dated 15.10.10Telephone attendance on plaintiff by way of telephone number on letter head - no answerLetter to plaintiff enclosing letter dated 15.10.10 sent by post and emailed; advising of unsuccessful attempts to fax same that day - 1 folioYA engaged 6 minutes $28.00 218 20.10.10 Perusing letter from plaintiff 20.10.10 alleging plaintiff has complied with timetable and furnishing reasons - 3 folios (facsimile)YA engaged 6 minutes $28.00 219 20.10.10 Facsimile in - pages 2 $2.00 220 20.10.10 Copies for inclusion in counsel's brief - photocopied pages 2 $1.00 221 20.10.10 Perusing Affidavit of Shirley Penson sworn 11.10.10 - 20 foliosPerusing Exhibit SP3 annexing pleadings filed in the proceedings, correspondence, flow chart of chronology - 98 pagesCP engaged 18 minutes $135.00 Total $663.00 5Having identified the sole ground of appeal and the amount involved, I now set out the evidence relied upon by the parties, as well as the submissions concerning the admissibility of the judgment of Williams DCJ of Friday 24 June 2011. I have extracted the relevant portion of each of these documents. Evidence relied upon by the parties 6The documents which were tendered are voluminous, but the documents relevant to this particular application are few in number. I shall list them each in turn. (a) The Costs Review Panel Reasons for Review Determination of 11 December 2013; 7The relevant passages are at [23], [24] and [25]: "23. Ground 2. "Assessor erred in failing to give proper considerations to the judgment order number 3 "The court is not prepared to vary the previous costs order made in favour of the plaintiff company" (the Costs Respondents) and order number 4 in context with order number 3." 1. The Panel understand this to be a reference to a costs order of the Court in relation to a security for costs application made by the Review Respondent. That application failed and the Review Applicant is entitled to its costs of that application. The costs orders for the Court were otherwise that the Review Applicants pay the costs of the Review Respondents on the ordinary basis and from 26 February 2010 on the indemnity basis. The order for costs made by the Court was for all of the costs of the proceedings and included "any order for reserved costs should be costs payable by the Review Applicant to the Review Respondents". Absent any order to the contrary this includes any applications where costs were "reserved". 2. The Costs Assessor rightly interpreted the Court's costs orders to mean that it did not interfere with the order in favour of the Review Applicant in regard to the security for costs application but otherwise encompassed the reserved costs and other costs of the proceedings. 3. The Review Panel makes no adjustment to the assessment of costs Assessor Rosier by reason of this ground. 24. Ground 3. "Assessor failed in assessing all costs on an indemnity basis when some of the costs claimed were payable on the ordinary basis only". 1.The Assessor did not so fail. The Review Panel has reviewed the assessor's file, including the marked up bill. It is apparent that the assessor carried out the assessment on the basis in order to give effect to the orders of the court - that is, the costs were payable on the ordinary basis from the institution of the proceedings until 25 February 2010 and thereafter on an indemnity basis. 2. Paragraphs 30 and 31 of the Reasons deal with this issue and make it clear that the Assessor 1. Understood the orders made and 2. Assessed the costs in accordance with those orders. 3. As indicated previously, the reserved costs become part of the costs of the proceedings. If they fall within the time period that the indemnity costs order applies (in this case from 26 February 2010) then they are to be assessed on the indemnity basis. 2. [sic] The Review Panel makes no adjustment to the assessment of costs Assessor Rosier by reason of this ground. 25. The Panel has considered all of the material that was provided to the Costs Assessor. The Panel agrees with his approach, reasons and determination. In particular the Review Panel has considered overall the amount of costs and disbursements claimed for a matter of this kind that was heard over a number of days and given that the costs orders allowed indemnity costs for virtually the entire course of the proceedings. The costs and disbursements allowed are fair and reasonable for costs reasonably incurred given those factors." (b) The Reasons for Determination of Costs Assessor Peter Rosier dated 2 September 2013 8This is an appeal from the Reasons for Determination of the Costs Review Panel, not from the Assessor, so some caution must be exercised when considering the Reasons for Determination of the Costs Assessor. However, it is helpful to know it from a chronological point of view the submissions made to the Assessor and how he arrived at the conclusions that he did. 9It should be noted that the ex tempore judgment of Williams DCJ and the transcript of the hearing before his Honour on 24 June 2011 were not provided to the Costs Assessor; nor were they tendered to the Costs Review Panel. All that was provided were the costs orders made by Williams DCJ. Submissions made to the Assessor that the indemnity costs order made by Williams DCJ "somehow does not apply to certain of the interlocutory proceedings" (paragraph 19 of the Costs Assessor's reasons for determination). As the Review Panel notes in its reasons for determination, the Costs Assessor considered that the order made for costs to be paid by the plaintiffs on an indemnity basis from 26 February 2010 was the operative order made by his Honour, and that the orders did not provide for these items to be excluded from the indemnity costs order, an approach the Review Panel endorsed as correct. (c) The plaintiff's objections dated 31 July 2013 and extracts from the transcript before the Judicial Registrar Smith (9 and 30 September 2010) and Letherbarrow SC DCJ (22 October 2010) 10The plaintiffs' objections before the Costs Review Panel (Tab M of the Affidavit of Ms Penson, which is Exhibit B) made this submission and attached the transcript of proceedings before the Judicial Registrar on 9 and 30 September 2010, and before Letherbarrow SC DCJ on 22 October 2010, which included both the applications for indemnity costs from the defendants in these proceedings and the reasons for their refusal. It is common ground that the earlier reasons for refusal were entirely different from the reasons for indemnity costs orders being made in these proceedings, namely that Aquaqueen Pty Ltd rejected an offer of compromise. 11The plaintiffs "detailed grounds for review" (Tab F) relied upon this rejection of the defendants' application for indemnity costs, asking Williams DCJ not to reassess the existing costs orders against the company on an indemnity basis. (d) The transcript of proceedings before Williams DCJ and his Honour's ex tempore judgment of 24 June 2011 12In the course of the hearing before me, counsel for the plaintiffs sought to rely upon the transcript before Williams DCJ and his Honour's judgment. These documents were not put before the Costs Assessor or the Review Panel. The tender was objected to by the defendants on the basis that it constituted fresh evidence. 13Section 384 provides in relation to issues of law that in determining whether there has been an error of law, fresh evidence may not be permitted. It is only where the court has made its determination that an error of law has occurred that the court "may" (s 384(1)) receive any fresh evidence (or if the matter is remitted, the Costs Assessor or Costs Review Panel may do so). For these reasons fresh evidence may not be led on a s 384 appeal: McCausland v Surfing Hardware International Holdings Pty Ltd (2010) 11 DCLR (NSW) 294 at [27]-[50] per Johnstone DCJ. 14Ms Castle submitted that I should exercise caution in relying upon this judgment, as the decision of Malpass M upon which this finding was based (Johnson v Madden t/as Maddens Solicitors [2000] NSWSC 463) was handed down prior to the Civil Procedure Act 2005 (NSW) and in particular in circumstances where there was no real equivalent to r 50.16 sub-r (3) and (5) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). In addition, she submitted, the material in question was not "disputed evidence" (Wentworth v Rogers (2006) 66 NSWLR 474 at [190]) but the judgment concerning costs and thus an integral part of the proceedings. 15Johnstone DCJ did, however, note this point and discuss the interaction of s 384(1) of the Act and r 50.16 UCPR. His Honour, correctly in my view, determined that it is not the court's task to decide where the truth lies "between competing versions of evidence". However, the documents before his Honour were fresh evidence. In the present case, the parties' submissions included the orders which are set out at the end of Williams DCJ's judgment and a summary of what appears in the transcript and judgment now sought to be relied upon. I regard the judgment giving rise to the costs orders as being merely the formal document representing these respective assertions, rather than fresh evidence. Accordingly these documents are admissible on the second basis advanced by Ms Castle. 16What the transcript reveals is very similar to the contents of those submissions, in that Ms Penson, on behalf of Aquaqueen International Pty Ltd, made the submission described above, in relation to the four costs orders made on the party/party basis, submitting that the refusal of indemnity costs on those occasions should prevail and that the court should not set aside those previous orders, notwithstanding any entitlement the defendants would otherwise have had to indemnity costs by reason of the rejection of their offer of compromise. What she said was: "And as I outlined in the motion of the plaintiff there were previous costs orders and I would also plead to the Court not to set aside those previous orders, those previous orders should remain. They were heard by judges, by judicial registrar and they were so ordered after hearing, after the arguments by both side [sic] and I really believe that those previous orders should not be set aside on that basis." (Exhibit A, page 8) 17When considering the orders that Williams DCJ made, it is important to note that this was not the only application before his Honour in relation to the previous costs orders. The defendants sought not only indemnity costs but also the setting aside of "all previous orders for costs in favour of the plaintiff and make all costs orders in favour of the defendant [sic]". This was on the basis of the conduct of the alleged unsatisfactory conduct of the litigation by Aquaqueen International Pty Ltd (see MFI 3, the defendants' written submissions). Williams DCJ refused this application and stated in his judgment: "Without reviewing almost eighteen months of proceedings, or in excess of eighteen months of proceedings in this Court in circumstances where both Mrs Penson and Mr Rollo have been given extensive latitude this afternoon on the question of costs, I am not prepared to decide this matter on those bases." 18The plaintiffs argue that the generality of Williams DCJ's reasoning and orders must be interpreted as meaning that his Honour was not only refusing the application by the defendants to set aside the costs orders in favour of Aquaqueen International Pty Ltd on the security for costs application, but also granting the application by Aquaqueen International Pty Ltd, brought by Notice of Motion. (e) Aquaqueen International Pty Ltd's Notice of Motion before Williams DCJ concerning costs 19This Notice of Motion (Exhibit B, Tab N), seeking the following orders: "4. That in any event the previous costs orders (before 6 June 2011) not be set aside; 5. That in any event the costs order made 6 June 2011 not be on an indemnity basis; 7. That in any event the previous orders for the Motion made by the first and second defendants for general access of subpoenas before his Honour DCJ McLoughlin (sic) on 29 April 2011 and 3 May 2011 not be set aside and costs be payable by the second defendants to the plaintiff on indemnity basis." 20The plaintiffs rely upon this Notice of Motion as evidence of the application to restrict the indemnity costs payable under the offer of compromise regime, although a comparison of the orders sought in this Notice of Motion shows a tenuous link at best (as a comparison between their contents and the four dates in paragraph 1 of this judgment can attest). Nevertheless, it is clear that Aquaqueen did bring an application before Williams DCJ not to make a global indemnity costs order, but to exclude the costs orders made on a series of occasions where these costs orders had either been made in favour of the plaintiff, or where the defendants' application for indemnity costs had been refused. (f) The orders made by Williams DCJ on 24 June 2011 21The orders made by Williams DCJ were as follows: (1)The Court holds the plaintiff and the plaintiff's director Ms. Penson to be jointly and severally liable to pay the first and second defendant's costs in these proceedings. (2)The Court orders that those costs be paid on an indemnity basis from 26/2/2010. (3)The Court is not prepared to vary the previous costs orders made in favour of the plaintiff company. (4)An order for reserved costs should be costs payable by the plaintiff to the first defendant and the second defendant. (5)The Court orders the plaintiff to pay the third defendant's costs on an indemnity basis. 22Ms Castle submitted that these orders are ambiguous on their face. There had only been one previous costs order made in favour of "the plaintiff company" (Aquaqueen International Pty Ltd) and the reference to "costs orders" made in favour of the plaintiff company (order 3) must therefore include the application by the plaintiff company that the indemnity costs order should not include the four occasions set out in paragraph (1) of this judgment, where an application for indemnity costs by the defendants in the proceedings before Williams DCJ (namely defendants in this costs appeal) have been refused, albeit on a different basis (namely the way in which proceedings were conducted, rather than pursuant to an offer of compromise). 23This is a difficult submission for Ms Castle to make in light of the unambiguous nature of order 2 made by Williams DCJ, namely that the costs of the proceedings before him should be paid on an indemnity basis, from the date of the offer of compromise, both by the plaintiff (Aquaqueen International Pty Ltd) and the plaintiff's director Ms Penson, the non-party against whom the costs orders were jointly made, in circumstances where there was clearly an application before his Honour that he should exclude these four specific prior costs rulings from that order. The relevant legal provisions 24Ms Castle's submission that Williams DCJ's orders are ambiguous, or alternatively made on an occasion where his Honour had no power to do so, arise from the interrelation of rr 42.2 and 42.7 UCPR. UCPR r 42.2 provides: "42.2 General rule as to assessment of costs Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis." 25UCPR r 42.7 provides: "42.7 Interlocutory applications and reserved costs (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings." 26When a court makes an order for costs, the first question is liability for costs (namely which party), and the second is the basis upon which those costs will be assessed. Ms Castle submits that, once the basis for assessment has been determined (for example, an application for indemnity costs has been refused), it is a finding based on the merits and the order made will stand unless specifically set aside; both the issues of liability for costs and the basis of the assessment are res judicata and the defendants are estopped from seeking indemnity costs without first setting aside the orders made on the ordinary basis. 27In the present case, the orders made in relation to the refusal of indemnity costs take effect from the date on which they were given (UCPR r 36.4(1)), namely 9 September and 22 October 2010 and cannot be set aside or varied in the absence of specific application to do so. Such orders include costs orders, for the reasons explained by McColl JA in Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2013] NSWCA 227 at [76]-[79]. Although McColl JA noted that entry of judgment on a filed certificate of a costs assessor or Review Panel is a ministerial act, rather than a judgment of the court, this does not alter the legal effect of the order (see Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 at [40] and [42]). This means that unless the Court orders otherwise, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system: UCPR r 36.11(2). Such a judgment or order may be set aside only in the circumstances set out in UCPR r 36.15 (where judgment is given or made irregularly, illegally or against good faith) or if an application is made within 14 days (UCPR r 36.16(3A) and (3B)). Williams DCJ could not therefore set aside these orders. 28Alternatively, it is submitted that the relevant judgments and orders for costs given on 9 September and 22 October 2010 respectively must stand unless set aside, a step the defendants failed to ask Williams DCJ to take. 29Further in the alternative, it is submitted that Ms Penson did draw his Honour's attention to these earlier costs orders, in that Ms Penson (on the company's behalf) asked that they should not be set aside. It is on this basis that it is asserted that order (3) made by Williams DCJ, namely that the court was "not prepared to vary the previous costs orders made in favour of the plaintiff company" must be in error. What his Honour was doing was refusing to vary all of the costs orders, and not merely those costs orders made in favour of the plaintiff company (of which there was only one), but also the costs orders made in favour of the defendants by Judicial Registrar Smith and Letherbarrow SC DCJ. In other words, Williams DCJ did consider the application by Ms Penson to set the orders aside, and intended to make orders to that effect (by referring to "orders" in the plural). His Honour's orders are further in error, in that order 2 wrongly states that all costs after the date of the offer of compromise are to be paid on an indemnity basis, namely 26 February 2010, when what was intended was to exclude these orders. 30Ms Castle submits that the Costs Assessor and Costs Review Panel each misinterpreted orders 2 and 3 and should have accepted her clients' interpretation or alternatively looked behind the orders to determine what actually occurred and/or whether Williams DCJ had the power to make these orders. The Costs Review Panel should have picked up the true meaning of order 3 (from the plural word "orders") and realised that the success of Aquaqueen International Pty Ltd in opposing the order for costs to be paid on an indemnity basis was a "win" for them, and thus a costs order in its favour. 31I do not accept these submissions. Williams DCJ's orders are clear. His Honour has ordered that costs be paid on an indemnity basis from 26 February 2010 (the offer of compromise date). His Honour, for unrelated reasons, rejected the defendants' application to set aside an interlocutory costs order made in favour of Aquaqueen International Pty Ltd; this is the "costs orders" referred to in order 3. The fact that his Honour used the phrase "costs orders" in the plural needs to be read in light of his reluctance to enter into specifics about what orders had been made over the previous 18 months, and, crucially, the subsequent phrase "made in favour of the plaintiff company". 32The Notice of Motion and transcript confirm that Aquaqueen International Pty Ltd raised the issue, both by Notice of Motion and in oral submissions, but Williams DCJ was satisfied that the indemnity costs order should be made payable at least from the date of the offer. The application about which he wanted to hear was the application that Ms Penson be liable for costs although a non-party: "ROLLO: So I will hand up the affidavit on which we rely on the accompanying exhibit and I also have a bundle of cases which - your Honour in short compass what we are seeking is firstly an order for costs to be on the indemnity basis, that is all costs awarded in favour of the first and second defendants in these proceedings and secondly an order that Ms Penson, the sole director and sole shareholder of the plaintiff be jointly and severally liable for those costs. The first ground on which we would seek that is on the basis of the rules offer that was made. HIS HONOUR: I don't want to hear you on that aspect of it. ROLLO: Yes your Honour so not on indemnity costs at all or on the rules offer? HIS HONOUR: No on the rules offer I'm quite satisfied that the indemnity costs should be made payable at least from then. ROLLO: Yes. HIS HONOUR: The matter that I'm most concerned about is-- ROLLO: The costs against Ms Penson personally? HIS HONOUR: Yes." (Transcript page 4) 33I am satisfied that Williams DCJ, although not specifically referring to these costs in his judgment or orders, refused the application to exclude these four costs orders from the indemnity costs order. This brings me to the issue of whether the Review Panel's award of costs for the four appearances set out in paragraph 1 of this judgment, on an indemnity basis rather than on the ordinary basis, amounts to an error of law. What was the Review Panel's error of law? 34What, then, was the error of law made by the Review Panel? As is set out in the extract above, they interpreted the orders made by Williams DCJ in a literal sense, namely that all costs from 26 February 2010 were to be paid on an indemnity basis, and that the court had refused to vary previous costs orders made in favour of the plaintiff company. The question is then whether a refusal of indemnity costs orders (on an unrelated basis) amounts to an order made "in favour of the plaintiff company". 35Neither counsel was able to locate any authority to the effect that the refusal to make an order for indemnity costs amounted to the making of an order in favour of the party against whom the costs order was made on an ordinary basis. Nor was counsel able to locate authority for the proposition that the burden of raising the issue lay upon the party which had successfully obtain the order for indemnity costs (I note that in Kable v State of New South Wales (No 2) [2012] NSWCA 361 the Court of Appeal appears to have accepted that the burden lay upon the party resisting the subsequent costs order, which in these proceedings would have been Ms Castle's clients). 36Counsel were not able to locate any cases as to whether a court needed to revisit and formally set aside an earlier refusal to make an indemnity costs order where an indemnity costs order is sought after the hearing on a different basis (in this case, on the basis of an offer of compromise). It is often noted, where applications for indemnity costs orders are made, that there are previous costs orders in favour of or against the party seeking the order (see for example Hammond v Hammond (No 2) [2010] NSWSC 377 at [15]; Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd (No 2) [2009] NSWSC 1409 at [6]). While an explanation that these costs are in addition to the existing orders was made in the second of these cases, no such order was made in the first, and there appears to be no settled practice as to how the determination of these orders should be approached. 37The questions of power to vary a previous costs order and the correct procedure for doing so are, however, issues which have no relevance to the interpretation of costs orders by an assessor or review panel. This is the problem I have with Ms Castle's submission to me that the Review Panel's obligation was to go behind the orders of Williams DCJ and to interpret the indemnity costs order (order (2)) as if the costs of the four occasions set out in paragraph 1 of this judgment were "carved out" from that order, by reason of these orders being specified to have been made "in favour of the plaintiff company". 38I do not accept this submission. The procedure of costs assessment requires costs to be assessed in accordance with the costs orders made. If those costs orders are unclear, an application for amendment under the slip rule could be made to the trial judge or, if the ambiguity went beyond the slip rule, an application for leave to appeal could have been brought. 39Accordingly, if Williams DCJ's orders overlooked the provisions of UCPR r 42.7, in that his Honour should not have made a global indemnity costs order, but should have specifically determined each of the costs orders (or alternatively should have acknowledged that he was unable to do so, as is submitted by Ms Castle), any error would be that of Williams DCJ, and not capable of correction in the course of the costs assessment process. 40In any event, I am satisfied that Williams DCJ did in fact consider the issue, in that Ms Penson's oral submissions squarely raised the issue as to whether indemnity costs should be awarded for these occasions when indemnity costs had been sought on a different basis but refused. Williams DCJ made an order for all costs, including these costs, to be paid on an indemnity basis, from 26 October 2010, conformably with the provisions of UCPR Pt 26 r 26.20 (as then in force) and Pt 42 r 42.15A. His Honour heard Ms Penson's submissions but the only way to reconcile his orders is that his Honour was not prepared to make the orders Ms Castle's clients sought. 41Accordingly, if Williams DCJ had not considered the issue in his judgment, or had no power to do so, it was not open to the Review Panel to go behind Order 2, or to parse and analyse the meaning of costs "orders" in favour of Aquaqueen International Pty Ltd to determine if these orders were made on more than one occasion, or involved one or more orders being made on the occasion in question, or consisted of a single order only, or to reconcile any asserted ambiguity with the indemnity costs order. 42Ms Castle poses the question as to what would occur to orders in favour of the party against whom the indemnity costs order is sought. These proceedings are an example of how such costs are dealt with. The defendants in these proceedings brought an application for the costs order in favour of Aquaqueen International Pty Ltd to be set aside, an application Williams DCJ refused, which tends to confirm that Williams DCJ did in fact consider all issues of previous costs orders, although in a fairly informal fashion. The costs hearing was complicated by adjournments, Notices of Motion from both parties, Ms Penson's late arrival on the second day upon which the costs argument was before the court and the extended nature of the proceedings generally. The transcript demonstrates that Williams DCJ endeavoured to direct the parties' attention to the principal issues in the application. His Honour's orders are clear and were correctly followed both by the Assessor and the Review Panel. 43The Review Panel accordingly has not made an error of law in its interpretation of the orders of Williams DCJ. The plaintiff's summons should be dismissed with costs. Concluding remarks 44 I was not addressed on the issue of whether the error of law, if established in a s 384 appeal, would justify disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304, Johnstone DCJ warned (at [16]): "[16] Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass: The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24]. ... [whilst there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneous and should be disturbed ... The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]-[18]." 45While it would not be appropriate for me to express a view without the benefit of counsel's submissions on the issue, the smallness of the amount involved is a matter of concern. Orders (1)Summons dismissed. (2)Plaintiffs pay defendants' costs. (3)Liberty to apply in relation to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 01 July 2014