Security for Costs Increased, Amazonia IP, Costs Payable

Original Word Document (148.7 KB) Federal Court of Australia

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 10) [2026] FCA 520

| File number: | QUD 578 of 2023 |

| Judgment of: | WHEATLEY J |

| Date of judgment: | 28 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE — Security for costs — Whether previously ordered security had been exhausted — Whether security should be increased — Whether an undertaking can be accepted as security — Whether further security would stifle proceedings — Whether there had been a material change in circumstances since the original security was provided — Where a further expert appointed — Security for costs increased — Costs of the security for costs applications be in the proceedings

PRACTICE AND PROCEDURE — Costs — General considerations — Costs of an indulgence — Whether a party seeking an indulgence will always pay the costs of the indulgence — Party seeking indulgence, in these circumstances ordered to pay the costs of the indulgence

COSTS —Which costs constitute costs thrown away — Costs thrown away to be determined in lump sum by the Registrar

COSTS — Costs payable forthwith — Purpose of r 40.13 of the Federal Court Rules 2011 (Cth) — Consideration of circumstances when appropriate for costs to be payable forthwith — Costs ordered to be payable forthwith

COSTS — Where an expert was previously jointly appointed — Where one party appointed a further joint expert — Whether the party with the new expert should also continue to bear the costs of the former joint expert |

| Legislation: | Corporations Act 2001 (Cth) ss 233, 461, 1335

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43, 56

Federal Court Rules 2011 (Cth) rr 19.01, 40.02, 40.13 |

| Cases cited: | Australian Competition and Consumer Commission (ACCC) v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246

Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4) [2013] FCA 567

Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 3) [2018] FCA 6

Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1; [1984] FCA 34

Big Review TV Ltd (in liq) v FC Securities Pty Ltd [2025] FCA 222

Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; [1952] HCA 49

Cassimatis v Australian Securities and Investment Commission (2016) 334 ALR 350; [2016] FCA 131

CIP Group Pty Ltd v So (No 10) [2025] FCA 1240

CIP Group Pty Ltd v So (No 4) [2024] FCA 1372

Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd [2016] FCA 37

Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347

DSE (Holdings) Pty Limited v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251

East Grace Corporation v Xing (No 1) [2005] FCA 219

Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) (2020) 4 QR 221; [2020] QCA 087

Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19

Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664

Gain Capital UK Limited v Citigroup Inc (No 3) [2016] FCA 582

General Trade Industries Pty Ltd (In Liq) v AGL Energy Ltd (No 2) [2023] FCA 556

he Advanced Technology Group Pty Ltd v Foxtel Cable Television Pty Ltd [2025] FCA 408

Hudson v Sigalla (No 2) [2017] FCA 339

Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2020] FCA 1018

KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76

Lane v Admedus Regen Pty Ltd [2016] FCA 864

LFDB v SM (No 2) [2017] FCAFC 207

McKellar v Container Terminal Management Services Limited [1999] FCA 1639

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (costs) [2021] FCAFC 75

Mitsubishi Motors Australia Ltd v Ripponlea Motors Pty Ltd (No 2) [2013] FCA 674

Morcom Holdings Pty Ltd v Mountain Asset Partners Pty Ltd (in liquidation) (No 4) [2025] FCA 1322

Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579; [2000] FCA 1732

Nardell Coal Corp (in l iq) v Hunter Valley Coal P rocessing (2003) 178 FLR 400; [2003] NSWSC 642

Ninan v St George Bank Ltd (No 2) [2013] FCA 273

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 9) [2025] FCA 1534

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd [2024] FCA 845

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 3) (2025) 311 FCR 588; [2025] FCA 661

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 4) [2025] FCA 662

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 6) [2025] FCA 1212

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 7) [2025] FCA 1333

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 8) [2025] FCA 1366

Paciocco v Australian and New Zealand Banking Group Ltd (No 2) (2017) FCR 403; [2017] FCAFC 146

Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) (No 3) (2013) 120 SASR 515; [2013] SASC 107

Sobey v Commissioner of Taxation [2008] FCA 1621

Tenser v Quigley [2016] FCAFC 178

Tucker v McKee [2022] FCA 315

Virk Pty Ltd v Yum! Restaurants Australia Pty Ltd [2016] FCA 1468 at 13; Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600

Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 |

| Division: | General Division |

| Registry: | Queensland |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Corporations and Corporate Insolvency |

| Number of paragraphs: | 149 |

| Date of hearing: | 9 December 2025 |

| Counsel for the Applicant: | Mr M Taylor |

| Solicitor for the Applicant: | Tusk Lawyers |

| Counsel for the First, Second, Fourth and Fifth Respondents: | Mr W Evans |

| Solicitor for the First, Second, Fourth and Fifth Respondents: | Safe Harbour Lawyers |

| Counsel for the Sixth Respondent: | Mr M de Waard |

| Solicitor for the Sixth Respondent: | KCL Law |
ORDERS

| QUD 578 of 2023 |
| IN THE MATTER OF AMAZONIA IP HOLDINGS PTY LTD |
| BETWEEN: | NORDEN HOLDINGS PTY LTD ACN 165 389 100 ATF THE NORDEN FAMILY TRUST

Applicant | |
| AND: | MARTENS INVESTMENTS PTY LTD ACN 602 144 703 ATF THE DF MARTENS FAMILY TRUST

First Respondent

DWAYNE FREDERICK MARTENS

Second Respondent | |

| order made by: | WHEATLEY J |
| DATE OF ORDER: | 28 april 2026 |
THE COURT ORDERS THAT:

Security for Costs

1. The Applicant is to provide additional security for the costs of the First and Second Respondents up to the first day of trial in an amount of $40,000.00

2. The Applicant is to provide additional security for the costs of the Sixth Respondents up to the first day of trial in an amount of $50,000.00.

3. By 4pm 9 June 2026, the Applicant’s solicitor is to provide the Court with an appropriate undertaking to hold the funds ordered under Order 1, and not to release those funds except in accordance with a sealed Order of the Court for costs in this proceeding that have been agreed or assessed and are payable to the First and Second Respondents or pursuant to a further order of this Court.

4. By 4pm 9 June 2026, the Applicant’s solicitor is to provide the Court with an appropriate undertaking to hold the funds ordered under Order 2, and not to release those funds except in accordance with a sealed Order of the Court for costs in this proceeding that have been agreed or assessed and are payable to the Sixth Respondent or pursuant to a further order of this Court

5. If security for costs is not provided in accordance with Orders 1 and 2, and the undertakings are not provided in accordance with Orders 3 and 4, the proceedings against all of the Respondents be stayed until such security is provided and such undertakings are provided.

6. The costs of the First and Second Respondents’ security for costs application filed on 3 September 2025 and amended on 4 December 2025 and the costs of the Sixth Respondents security for costs application dated 26 August 2025 and amended on 4 December 2025, be the parties’ costs in the proceedings.

Costs of the 12 November 2025 Application (Norden No 9)

1. The Applicant pay the costs of the First, Second and Sixth Respondents of the 12 November 2025 Application heard on 24 November 2025 (which were reserved), to be payable forthwith and to be fixed on a lump sum basis by a Registrar.

Costs thrown away by the Orders of the Court dated 25 November 2025

1. The Applicant pay the First, Second and Sixth Respondents’ costs thrown away by reason of the Orders dated 25 November 2025 to be payable forthwith and to be fixed on a lump sum basis by a Registrar, except that will not include any costs thrown away as a result of the cancelled mediation on 12 November 2025, which are to be the parties’ costs in the proceedings.

Applicant’s Application

1. The costs orders made on the following dates in favour of the Applicant, are to be payable forthwith and to be fixed on a lump sum basis by a Registrar:

(a) 15 August 2025;

(b) 24 October 2025; and

(c) 31 October 2025.

1. The chapeau of Order 3 of the Orders of the Court dated 7 May 2025 be amended as follows (with 3.1, 3.2, 3.3 and 3.4 remaining):

Pursuant to FCR Rules 5.04, 23.14 and 23.15 and in accordance with the following orders the parties first, second and sixth respondents appoint and rely on a single common valuation expert (Expert) to value the Fourth and Fifth Respondents (Valuation), on the one hand and the Applicant appoint and rely on a separate expert valuer (Applicant’s Valuer) to value the Fourth and Fifth Respondents:

1. Order 13 of the orders of the Court dated 7 May 2025, be amended as follows:

From 9 December 2025, The following parties are in the First instance to pay the Expert’s fees and disbursements 1/3 Applicant, 1/3 5 0% First and Second Respondents, 1/3 50% Sixth Respondent and the Applicant is to pay all of the Applicant’s Valuers fees and disbursements.

1. Further to Order 1(a) of the Orders of the Court dated 3 October 2025, paragraph [6.1] of that application lodged on 27 August 2025 be dismissed with costs to be in the proceedings.

Costs of these Applications

1. The costs of and incidental to the following applications (all heard on 9 December 2025) will be the parties’ costs in the proceedings:

(a) the interlocutory application filed on 4 December 2025 of the First and Second Respondent;

(b) the interlocutory application filed on 4 December 2025 of the Sixth Respondent; and

(c) the interlocutory application lodged on 4 December 2025 of the Applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTORY OVERVIEW

1 This judgment considers five applications, which can be grouped as follows:

(a) the Respondents seeking:

(i) further security for costs;

(ii) costs of the application heard in November 2025;

(iii) costs thrown away because of the Orders made on the hearing of that November application, which resulted in an adjournment of the trial; and

(b) the Applicant seeking that:

(i) previous costs ordered be payable forthwith and on a lump sum basis;

(ii) varying orders relating to the costs of the (former) joint expert, Mr McGuiness; and

(iii) dismissal of a previously adjourned aspect of an application dated 27 August 2025.

2 Although I agree with the recent observation of his Honour Justice McElwaine endorsing a remark of a very senior judge of this Court “ that humanity can do without another published decision concerning a security for costs application ”: CIP Group Pty Ltd v So (No 10) [2025] FCA 1240 at [1], it cannot be avoided in this proceeding.  The proceedings have changed significantly, and it is appropriate to revisit the issue of security for costs.

3 These proceedings have a long history.  It is not necessary to detail that history.  It is sufficient to observe that the trial which was set to commence on 8 December 2025 was vacated and further case management orders were made, including that the Applicant was permitted to rely on additional expert evidence. The Orders were made after hearing from the parties on the Applicant’s 12 November 2025 application (November Application).  The Orders of 25 November 2025 (November Orders) did the following:

(a) granted leave to the Applicant to rely on a separate expert valuer;

(b) vacated the trial which was to commence on 8 December 2025;

(c) it listed for hearing the Security for Costs Applications and any other Costs Applications sought, because of the trial being vacated; and

(d) made timetabling orders to facilitate the hearing of those matters.

4 The reasons I gave for the November Orders were given in Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 9) [2025] FCA 1534 (Norden No 9). The proceeding has not been allocated new trial dates.

5 For the following reasons, on the five applications:

(a) the security for costs will be increased, although not for the full amount sought;

(b) the Applicant will be ordered to pay the Respondents’ costs of the November Application and the costs thrown away by reason of the November Orders, but this will not include the costs thrown away as a result of the cancelled mediation;

(c) the previous costs orders in favour of the Applicant will be ordered to be payable forthwith and on a lump sum basis;

(d) all of these costs orders will be referred to a Registrar for determination of fixed lump sum costs amounts, together;

(e) the orders relating to the appointment and the costs of the (former) joint expert will be regularised to be consistent with Norden No 9; and

(f) paragraph [6.1] of the 27 August 2025 application will be dismissed, with costs to be in the proceedings.

THE APPLICATIONS

6 On adjourning the trial in these proceedings (Norden No 9) the parties sought for some of that hearing time to be utilised for the hearing of various interlocutory applications.  As such, the following five applications were listed for hearing, and heard together.

7 The applications of the First, Second, Fourth and Fifth Respondents’, as explained below, should only be in relation to the First and Second Respondents.  The Applicant in this proceeding, Norden Holdings Pty Ltd as trustee for the Norden Family Trust, seeks by way of its amended concise statement dated 27 November 2024, in summary, the following relief (including interests and costs):

(a) declarations as to the ownership in certain shares (being the Norden Shares) in the Fourth and Fifth Respondents (being Amazonia IP Holdings Pty Ltd and Amazonia Group Pty Ltd, respectively (the Amazonia Companies));

(b) orders pursuant to s 233(1)(d) or (e) of the Corporations Act 2001 (Cth) (the Corporations Act) that the Norden Shares be purchased;

(c) where any Respondents are ordered to purchase the Norden Shares, a receiver be appointed to do certain things pursuant to s 233(1)(h) of the Corporations Act; and

(d) further, or alternatively, orders pursuant to s 233(1)(a) or s 461(e) or (k) of the Corporations Act, that the Amazonia Companies be wound up.

8 The First Respondent, Martens Investments Pty Ltd as trustee for the DF Martens Family Trust and the Second Respondent Mr Dwayne Martens (the D Martens Respondents) together with the Sixth Respondent, Mr Wesley Martens (Mr W Martens) are what may be described as the active respondents in the proceedings. The essential dispute in these proceedings is one between shareholders, or a membership dispute.  Although there is no rule that the Amazonia Companies should not actively participate in these proceedings, the test is whether it is in the interests of the companies as a whole whether such participation and expenditure is proper.  The starting point for such consideration is akin to a rebuttable presumption, that the Court will usually regard such participation and expenditure with scepticism and regard it as unnecessary: Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) (2020) 4 QR 221; [2020] QCA 087 at [47] and 51; Power v Ekstein [2010] NSWSC 137 at [111]-114.  This orthodox approach will be applied in these circumstances, it being consistent with well established principles; the companies funds should not be applied to the litigation save to the extent necessary to protect the companies’ own valid interests: Lane v Admedus Regen Pty Ltd [2016] FCA 864 at 46.

9 The five applications considered in this judgment can more properly be described as follows:

(1) the D Marten Respondents’ security for costs application dated 3 September 2025 and amended on 4 December 2025. Further, in so far as any costs orders are made in favour of the D Martens Respondents and paid from the security already held, those amounts are sought to be replenished within 7 days. Costs of this application are also sought (D Martens Respondents Security Application);

(2) the Mr W Martens’s security for costs application dated 26 August 2025 and amended on 4 December 2025 (Mr W Martens Security Application);

(3) the D Marten Respondents’ application dated 4 December 2025 for an order for costs of the November Application and thrown away, because of the November Orders and Norden N o 9 (D Martens Respondents Costs Application);

(4) Mr W Martens’ application dated 4 December 2025 for an order for costs thrown away, because of the November Orders and Norden No 9, which include the costs of the November Application (Mr W Marten s Costs Application); and

(5) Norden, the Applicant seeks in its application that:

(a) the costs which were ordered in its favour on 15 August 2025, 24 October 2025 and 31 October 2025, be payable forthwith, on a lump sum basis;

(b) Order 13 made on 7 May 2025 which related to the fees of Mr McGuiness, the (former) joint expert be vacated, and the Respondents pay Mr McGuiness’ fees and disbursements ½ to the D Martens Respondents and ½ to Mr W Martens unless otherwise agreed in writing as between the D Martens Respondents and Mr W Martens;

(c) dates upon which the Applicant’s expert is to value the Fourth and Fifth Respondents be 30 June 2023, 1 August 2023, 21 December 2023, 30 June 2025 and 30 September 2025 or such of those dates as the Applicant sees fit to instruct its expert; and

(d) Applicant’s application filed 27 August 2025, in relation to paragraph [6.1] be dismissed, with no order as to costs or costs be in the proceedings.

10 The D Martens Respondents Costs Application seeks the following, that Norden pay the:

(1) costs of the November Application (which resulted in the November Orders (Norden No 9)) on an indemnity basis or alternatively on a standard basis;

(2) costs thrown away as a result of the:

(i) abandoned mediation on 12 November 2025;

(ii) vacation of the December 2025 trial dates;

(iii) trial preparation work undertaken for the December 2025 trial.

(3) costs in (1) and (2) above, fixed on a lump sum basis by the Court and payable forthwith;

(4) increase in expert costs as a result of abandoning the joint expert;

(5) costs in (4) on a lump sum basis and payable forthwith; and

(6) costs ordered from (1)-(5) be paid out of the security already held, pursuant to the Orders dated 10 May 2024 and 19 June 2025.

11 During the hearing, Counsel for the D Martens Respondents did not press paragraph (4) (and consequentially (5)) above, those matters not being properly characterised as costs thrown away. Further, the Respondents withdrew and did not press that the costs should be awarded on an indemnity basis (from paragraph (1)).

12 Mr W Martens Costs Application seeks that Norden pay Mr W Martens costs thrown away by reason of the:

(1) adjournment of the trial listed on 8 December 2025;

(2) Applicant being granted leave to rely on an additional expert valuer; and

(3) Applicant unilaterally cancelling the mediation.

13 On this basis the D Martens Respondents Costs Application and Mr W Martens Costs Application (Martens Costs Applications) raise similar issues and can be considered together as follows.

(1) Should the Applicant pay the D Martens Respondents and the Mr W Martens costs of the November Application?

(2) Should the Applicant pay the D Martens Respondents and the Mr W Martens costs thrown away by November Orders and cancelling the mediation?

(3) If any of these costs are ordered, should the costs be payable forthwith and fixed on a lump sum basis?

14 This matter has already been the subject of a number of interlocutory judgments in this Court.  Relevantly, the necessary background can be ascertained from:

(a) Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd [2024] FCA 845 (Needham J) (Separate Question Judgment);

(b) Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 3) (2025) 311 FCR 588; [2025] FCA 661 (Norden No 3), being a strike-out application;

(c) Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonian IP Holdings Pty Ltd (No 4) [2025] FCA 662 (Norden No 4) being the earlier security for costs judgment; and

(d) Norden No 9 being the application to engage an additional expert with the consequential adjournment of the trial.

15 This judgment assumes a familiarity with these decisions and as such, it is unnecessary to rehearse the history of the proceedings.

The Security for Costs Applications

16 Each of the D Martens Respondents Security Application and the Mr W Martens Security Application (together, the Security for Costs Applications) rely on s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA), r 19.01(1)(a) of the Federal Court Rules 2011 (Cth) (the Rules) and s 1335 of the Corporations Act.

17 On 10 May 2024, Downes J ordered security for costs in an amount of $20,000.  Mr W Martens was not a party to the proceeding at that time.

18 On 19 June 2025, I ordered further security being, with respect to:

(a) the D Martens Respondents, $20,000 up to and including the second mediation; and

(b) Mr W Martens, $30,000 up to and including the mediation.

19 The date for the second mediation was changed, several times. Ultimately, the parties agreed to a private mediation which was to take place on 12 November 2025.  That mediation did not proceed.  However, the date by which it was to take place is relevant to the consideration of the security for costs, given the terms of the previous orders for security.

20 The D Martens Respondents and Mr W Martens submit that the security previously ordered has been exhausted.

21 The Security for Costs Applications were initially brought seeking effectively additional security for costs due to the increase in the costs of the (former) joint expert.  Each security for costs application sought $46,406.25 or such amount as the Court deems just, as additional security, failing which it was sought that the proceedings be stayed. Each of these applications was initiated at a time prior to the second mediation, which is consistent with only seeking increased security on the basis of the increase in the (former) joint expert costs.  That being the relevant change in circumstances.

22 However, the position has changed further.  The D Martens Respondents now seek security for costs in an amount of $250,000 and Mr W Martens now seeks security for costs in an amount of $595,640, or such amount as the Court deems just.

23 A material change in circumstances since the determination of the original security for costs is required: Ninan v St George Bank Ltd (No 2) [2013] FCA 273 at [10]-11.  This is satisfied in the circumstances of this case, given the vacation of the December trial and engagement of another separate expert: see Norden No 9.

Relevant Principles – Security for Costs

24 The parties did not disagree on the applicable principles to be applied, on a consideration of security for costs. These were outlined in Norden No 4 at [13]-[22].  Also see CIP Group Pty Ltd v So (No 4) [2024] FCA 1372 at [26]-38, both of which I adopt.

25 The threshold is met. Norden accepted it would be unable to satisfy an adverse costs order.  This position is relevantly the same as at the time of Norden No 4. The financial position of the Applicant has not since improved.

26 It is well established that the primary purpose of an order for security for costs is to provide that a successful defendant or respondent has protection (although not to the level of a full indemnity) for the costs incurred in the proceedings bought against them: Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2020] FCA 1018 at 96.

27 However, it is and remains for the D Martens Respondents and Mr W Martens to persuade the Court to make an order for security for costs, in all of the circumstances.

28 Norden submitted that no further security should be ordered.  In the alternative, Norden submitted that if security is to be provided, then the funds from the existing costs orders (which are sought to be payable forthwith) should be applied, or only a very modest amount should be ordered, say $20,000.  Otherwise, Mr Norden has offered a form of undertaking to pay an adverse costs order made against the Applicant, “supported by [his] interest in [their] family home”.

29 As the threshold is met, the previous security exhausted and given the change in circumstances, the real question is the quantum and form of security to be provided.

Should additional security for costs be required?

D Martens Respondents’ Security Application

30 The D Martens Respondents submitted that it was appropriate to revisit security for its costs as the litigation has recently undergone significant change.  This is accepted.  Section 56(3) of the FCA expressly provides that the amount of security ordered may be reduced or increased.

31 Norden submits that its prospects of success, after the Separate Question Judgment, are strong.  Norden seeks to maintain this submission even after the delivery of the (former) joint expert report. This is a matter which Norden submits should weigh in its favour in the exercise of the Court’s discretion.

32 The D Martens Respondents disagree with what are the metes and bounds of the trial and submit it is an oversimplification to describe the matters resolved on the Separate Question Judgment as effectively determining liability in Norden’s favour.  The D Martens Respondents submit that the Separate Question Judgment did not resolve the question of oppression.  They also submit that they acted in good faith, that there was no unfair prejudice, no diminution in equity and otherwise no conduct constituting oppression in the statutory sense.  Furthermore, the issues regarding the convertible note transaction and valuation of the companies remain in dispute.

33 The D Martens Respondents submitted, overall that the merits of the parties’ cases are a neutral factor.

34 As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the Court should proceed on the basis that the claim is bona fide with a reasonable prospect of success: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; [1995] FCA 76 at 197 (Beazley J).  Therefore, once the Court is satisfied that the claim is bona fide with a reasonable prospect of success, the merits underlying the claim will generally be regarded as a neutral factor: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 at [37]-38.  This is the appropriate approach to take on this application for further security.

35 Similar to Norden No  4, although Norden submitted that no further security should be ordered and subject to the quantum involved, it was not submitted that an order for security for costs would stultify these proceedings.

36 There was updated evidence of Mr Norden, the director of Norden, that he has some ability to meet a security for costs order and that he was prepared to do so to the extent that he was able.  It can be accepted that Mr Norden is a person who may benefit from the Applicant’s litigation, if successful.  As such, it is appropriate to consider the position of Mr Norden: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1; [1984] FCA 34 at 4 (Sheppard, Morling and Neaves JJ).

37 After a survey of the relevant authorities, regarding this issue of the extent to which the principles from Bell Wholesale should be qualified by a consideration of whether those who benefit from the litigation could reasonably expect to fund it, Derrington J in General Trade Industries Pty Ltd (In Liq) v AGL Energy Ltd (No 2) [2023] FCA 556 summarised the applicable principles at [73]-[74].  However, as was observed by Moore J in T he Advanced Technology Group Pty Ltd v Foxtel Cable Television Pty Ltd [2025] FCA 408 at [11], “(t)hese matters have a more limited role in the present case, where [the person], the focus of the relevant enquiry, is the sole shareholder and director of [the applicant’s impecunious company] and is the guiding mind of [that company] for the purposes of the conduct of the litigation.”  Those are the circumstances of this case.  Mr Norden is the sole shareholder and director of the Applicant and the sole beneficiary of the discretionary trust.  Mr Norden is the controlling mind of the Applicant in this proceeding.

38 However, as the evidence is that an amount can be paid, but is dependent on any amount ordered, the proceedings might be at risk of stultification if a large amount was ordered by way of security. This is relevant in exercising the discretion.

39 In this context, Norden has referred to other costs orders it has in its favour, on an indemnity basis, but which have not yet been quantified and which are not yet payable.  However, on this suite of applications, Norden seeks these costs to be payable forthwith.

40 The D Martens Respondents also submit that any impecuniosity of Norden has not been caused by them.  This is on the basis, so it is submitted, that the value of the equity at the time of any alleged wrongful action was very low.  There is some evidence to support this submission, by way of the report of the (former) joint expert.  However, given that Norden has been granted leave to engage a separate expert and further evidence will become available on the trial in this regard, it is not possible to know at this stage what is the value of the shares or whether that has had an effect on the financial position of Norden.  In these circumstances, it would not be appropriate to determine any such value issue now, that will be for trial.  As such, this factor is neutral.

41 There has been no delay in bringing this application for further security by the D Martens Respondents.  The second mediation, to which the previous order for security for costs related in Norden No 4, was ultimately scheduled to take place on 12 November 2025.  That mediation was cancelled by Norden on receipt of the (former) joint expert report.  These applications were filed beforehand and timetabling orders were made in Norden No 9.  Amended applications of the D Martens Respondents and Mr W Martens were filed on the day required by the orders.

42 Delay is a relevant factor when exercising this discretion: Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; [1952] HCA 49 at 175 (Fullagar J): Big Review TV Ltd (in liq) v FC Securities Pty Ltd [2025] FCA 222 at [30]-[39], (Moore J). However, there is none in these circumstances.

43 In terms of quantum, the D Martens Respondents submit that the security for costs, which has been ordered thus far, has been exhausted and was for a minimal amount. That was however, ordered up to and including the second mediation.

44 The solicitors for the D Martens Respondents estimate legal costs in an amount of $432,652 and submit that the amount of security sought (being $250,000) is deliberately conservative. The amount of estimated costs was variously referred to by the solicitor for the D Martens Respondents as “to trial” and “to the conclusion of a trial”.  Counsel for the D Martens Respondents at the hearing clarified that although the estimate did include the costs of trial, security up to the first day was all that was sought.

45 Further that estimate included additional expert costs (at 50%) in an amount of approximately $150,000. This is broadly based on 50% of the higher of the expert’s estimate of his costs.  This estimate (being 50% and not 33%) appears to be based on Norden’s application to be released from paying the future costs of the (former) joint expert or is at least based on the alternative submission advanced by the D Martens Respondents (as outlined below).  Counsel for the D Martens Respondents at the hearing clarified this should be reduced by removing the cost for a supplementary report (being Item A), in an amount of approximately $28,000.  It was also submitted the estimate should also be reduced by the days in trial that the expert was asked to assume he would be required to attend, which was 2 days.  The expert’s estimate for preparation and attendance at trial was (using the higher amount) the equivalent of 10 days.  That equates to 8 days preparation for a 2 day attendance at trial.  In any event, the D Martens Respondents submit that the estimate should be reduced by 2 days, which is approximately $16,000.

46 In total, the additional expert costs are approximately $300,000 (that being approximately 10 working weeks), however, the expert observes that there are many unknown matters.  It maybe that the expert costs are more than this estimate.

47 Ultimately, however, counsel for the D Martens Respondents submitted that the estimate should (less the items identified in relation to the expert costs) only include:

(a) the costs estimate for the expert; and

(b) legal costs from this point to the first day of trial.

Which added to approximately $275,000.

48 Implicit in this position taken by the D Martens Respondents was that they were not seeking amounts by way of past costs.

49 However, as the costs estimate was variously described as “to trial” and “to the conclusion of trial”, further reductions are required, as counsel accepted the estimate included the costs of the trial.  The matter was previously listed for a 6 day hearing, and with two separate experts, it is likely to be longer. The solicitor for the D Martens Respondents states that his estimate is “double” the estimate previously given, when the matter was to proceed on the basis of a single expert.  This is said to be on the basis of “added time and complexity associated with having an additional expert”.  There was no break-up of this part of the costs estimate. The D Martens Respondents’ solicitor was not required for cross-examination.

50 The estimate of the costs provided by the solicitor for the D Martens Respondents includes the costs of trial and is given at a very high-level of generality. It is not apparent, in any way, how this estimate is calculated.  Relevantly he states:

Based on counsel’s estimates and my preparation costs associated with previous trials I have been involved in throughout my legal career, I estimate that the Respondents’ future legal costs to the conclusion of a trial would be between $150,000 and $200,000.

51 The solicitor for the D Martens Respondents does not provide hourly rates, the particular level of lawyer involved to undertake which tasks and the time required for those tasks, any other description or time estimate for items of work to be undertaken by the solicitors or by counsel; cf Jasmin Solar at [100].

52 Generally, as was accepted by the D Martens Respondents any order for security for costs is not granted at the level of full indemnity: East Grace Corporation v Xing (No 1) [2005] FCA 219 at 6; Virk Pty Ltd v Yum! Restaurants Australia Pty Ltd [2016] FCA 1468 at 13; Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600 at 24.

53 It is not the role of the Court on this application to undertake a costs assessment.  However, given the very high level that the costs estimate is provided, it is difficult to properly interrogate the estimate provided, even allowing for the concessions properly made during the hearing: cf Jasmin Solar at [100]-[118].  The Applicant submits that the evidentiary foundation for the D Martens Respondents Security Application is so lacking that no security ought to be ordered.  However, there is still some evidence, including the evidence of additional expert costs, to consider the quantum of security.  Having said that, evidence at this level of generality is not to be encouraged.  It is quite unhelpful.

54 In taking a “broad brush” consideration: Tucker v McKee [2022] FCA 315 at 33; Jasmin Solar at [118] and [123], again observing that it is not an “exact science”, discounting for the costs of the actual trial, the reduction in expert costs, including working from the lesser amount (rather than the higher), reducing also for the “doubling” which has been applied and taking into account that the amount is not a complete indemnity, the “feel” of the case, taking into account all of the observations above, the sum of $40,000 is appropriate, up to the first day of trial.

Mr W Martens Security Application

55 Mr W Martens is in a different position.  Mr W Martens was not a party to the proceedings on 10 May 2024.  Needham J made orders (not by consent) on 20 November 2024 that Mr W Martens be joined as the Sixth Respondent.  The Orders of 19 June 2025 provided that security for costs be provided in relation to Mr W Martens up to and including the next mediation which was to be held on 12 November 2025.

56 In terms of the prospects of success, Mr W Martens was not a party to the proceedings when the Separate Question Judgment was delivered.  Mr W Martens accepted that Norden’s claim is bona fide with a reasonable prospect of success as against him.  It was not accepted, however, that the case was strong.  The Court is not in a position to, nor should it, on this application, determine the substantive merits of Norden’s claim or Mr W Martens’ defence.  As such, properly, this matter is neutral.

57 In terms of whether an order for security for costs, in favour of Mr W Martens, would stifle the proceedings, the same considerations as outlined above at ]- ] apply.  It is again dependent on the quantum of any amount ordered, which is relevant when exercising the discretion.

58 There has been no relevant delay by Mr W Martens in bringing this application.

59 In terms of quantum, the Mr W Martens Security Application sought an amount of security for costs of $595,640.  The written submissions relied on by Mr W Martens seeks an amount of security of $314,895.00 or $322,957.50.  It was accepted that the full amount of security for costs as sought in the amended application, was not supported by the evidence.

60 Mr W Martens relies on an affidavit of a costs consultant, Mr De La Rue who has stated he has read and is conscious of his obligations under the Expert Witness Code of Conduct.  It is unclear whether this is the Federal Court Practice note relating to Expert Evidence as there was no declaration as required by that Practice Note: cf Jasmin Solar at [103]-[104].

61 Mr De La Rue provides an estimate of costs as follows:

(a) Part A, being additional costs and disbursements incurred and to be incurred up to and including the 2 day hearing in December 2025 of $195,045; and

(b) Part B, being additional costs and disbursements of an eight day trial of $87,600.

62 Mr De La Rue states, that in his opinion, the rates applied by the solicitors for the work to be undertaken, and the rates for counsel are fair, reasonable and within the scale amount of costs.  Further, Mr De La Rue states that he has applied the hourly rates for solicitors engaged by KCL Law (solicitors for Mr W Martens), at their hourly charge-out rates. Again, which in his opinion are reasonable.

63 The total security sought in the written submissions for Mr W Martens comprises Part A and Part B of the estimate provided by Mr De La Rue, plus an amount of $32,250.00-$40,312.50, for half (50%) of the (former) joint expert costs (in Item F). This estimate (being 50% and not 33%) appears to be based on Norden’s application to be released from paying the future costs of the (former) joint expert, or at least the alternative submission advanced by Mr W Martens (as outlined below).

64 Norden submits that this costs estimate is excessive.  This is on the basis that 6 days preparation for counsel, for an 8 day trial, is excessive and there is a significant amount of work undertaken by the partner/principal solicitor, whereas it should be undertaken by a solicitor at a lower level of experience (as on an assessment it would be determined to be reasonable for a lower level solicitor to have undertaken such work).  Furthermore, Norden submits that Mr De La Rue’s costs estimate includes past costs dating back to April 2025, during the strike-out application (resulting in Norden No 3), costs which are the subject of the separate costs application (being Mr W Martens Costs Application) and the costs of the trial, rather than up to the first day of trial.

65 Counsel for Mr W Martens quite properly identified a range of items from the estimate provided by Mr De La Rue, that were also being sought as part of the Mr W Martens Costs Application, being items 4-9, 21, 26-30 and 32-40.  Broadly, without taking into account the fees for the (former) joint expert recorded as a disbursement, the estimate totals approximately $75,000.  Part B of Mr De La Rue’s estimate, although described as “Final Hearing Costs” is both the preparation and appearance costs of an eight-day trial.  Again, counsel quite properly accepted that usually any security for costs would only be up to the first day of trial.  The estimate provided of eight days in hearing was $55,680.00.  Finally, Item F of the (former) joint expert’s costs estimate was added to the security amount sought, which included attendance at Court for two days of Mr McGuiness, as well as his preparation costs.  This should also be reduced by approximately $16,000.

66 As already observed, it is not the role of the Court on this Application to undertake a costs assessment, nor should any security for costs be granted at a level which provides a full indemnity.  However, it is appropriate to reduce the estimate provided by these amounts.  That would also include the past costs for the (former) joint expert, which are recorded in Mr De La Rue’s estimate in Part A.  Although it can be accepted that the quantum of such costs was unexpected, the previous order for security took into account that a joint expert would be retained, such that those costs are properly past costs, and although the quantum is more, the character of those costs was anticipated.  Further, all of the parties have shared in those previous (former) joint expert costs, including the Applicant.

67 Therefore, in taking a “broad brush” consideration: Tucker at 33; Jasmin Solar at [118] and [123], again observing that it is not an “exact science”, it is based on the “feel” of the case.  Taking into account all of the observations above, reducing for the amounts properly characterised as past costs or the subject of the costs applications or the actual trial costs, as opposed to costs up to the first day of trial and applying an appropriate discount, the sum of $50,000 is appropriate, up to the first day of trial.

Additional Security should be provided

68 For the reason given above, it is appropriate to order further security for costs, to each of the D Martens Respondents and Mr W Martens, as follows, in relation to:

(a) the D Martens Respondents in an amount of $40,000; and

(b) Mr W Martens, in an amount of $50,000.

69 Broadly, similar overall discounts have been applied to the amount sought by the D Martens Respondents (in the amount of $250,000) and Mr W Martens (in the amount of $322,957.50).

Form of Security for Costs to be provided

70 Mr Norden has offered a form of undertaking (up to $250,000) which Mr W Martens submitted was vague and ambiguous.  It purports to be on the basis of another person, supported by “an interest” in the family home and limited to only be in relation to the excess amount due to Norden under the Earlier Costs Orders (defined below).  This form of security is unacceptable.  Having said this, an undertaking can be valuable and it can be a proper form of security: see for example, Morcom Holdings Pty Ltd v Mountain Asset Partners Pty Ltd (in liquidation) (No 4) [2025] FCA 1322 at 17 and the authorities cited therein.  However, what is offered by Mr Norden in this case, does not satisfy such requirements.

71 Alternatively, Norden has submitted that should it be successful in having the Earlier Costs Orders in its favour ordered to be payable forthwith, those amounts could satisfy the provision of additional security.

72 I will return to the form of security, after consideration of the remaining costs applications.

COSTS – of the Security for Costs applications

73 Each of the D Martens Respondents and Mr W Martens sought their costs of their respective Security for Costs Applications.

74 Section 43 of the FCA provides the Court with a “broad and ample” discretionary power to award costs: DSE (Holdings) Pty Limited v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251 at 14; Tenser v Quigley [2016] FCAFC 178 at 26.  The power “must be exercised judicially, not arbitrary or capriciously or on grounds unconnected to the litigation” but having regard to the relevant principles and justice of the particular circumstances of the case involved: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 at 4.  The Court must take “into account any failure by a party to comply with the overarching purpose of the civil procedure provisions”, being to “facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible”: s 37N(4) and s 37M(1) of the FCA Act; LFDB v SM (No 2) [2017] FCAFC 207 at 7; also see Australian Competition and Consumer Commission (ACCC) v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246 at [6]-9. Also see, Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965 at [18]-[24].

75 Although the position usually taken is that costs follow the event such as to award a successful party their costs, a generally accepted exception to that is that it is usual for a party seeking an indulgence to pay the costs of seeking that indulgence: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (costs) [2021] FCAFC 75 at 7.

76 All parties have had some success.  The D Martens Respondents and Mr W Martens have obtained a further order for security for costs, however each properly recognised some amounts should not have been included in the costs estimates.  The Applicant has also obtained a significant reduction in the amounts sought.

77 Most of the material, both in terms of affidavits and submissions, was filed late on the applications for security, and not in accordance with the Orders of 25 November 2025. However, the parties dealt with these applications, in the context of the other Costs Applications effectively and efficiently.

78 Taking all of these matters into consideration, the appropriate order as to costs on the Security for Costs Applications is that these costs be the parties costs in the proceedings.

Martens’ Costs Applications

79 There is overlap in the D Martens Respondents Costs Application and Mr W Martens Costs Application, such that it is convenient and appropriate to consider these issues together, as identified at ] above.

Should the Applicant pay the costs of the November Application?

80 The D Martens Respondents and Mr W Martens commenced from the premises that although Norden was successful in Norden No 9, it was granted an indulgence.  The costs of an indulgence, it is submitted are usually borne by the party seeking that indulgence: Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) (No 3) (2013) 120 SASR 515; [2013] SASC 107 at 18, with reference to Nardell Coal Corp (in l iq) v Hunter V alley Coal P rocessing (2003) 178 FLR 400; [2003] NSWSC 642 at [144]-145.

81 The November Application generally sought that Norden be granted leave to brief an additional, separate expert valuer with the consequential effect that the December 2025 trial be vacated: Norden (No 9) at [3].

82 Norden was successful in obtaining the relief that it sought. However, that was properly characterised as an indulgence: Norden (No 9) at [61]-[62].  Norden submits that even if the application was properly regarded as an indulgence, the usual rule, that the party seeking the indulgence will usually pay the costs of the application seeking that indulgence, was not an inflexible rule, which recognised the discretionary nature of an order for costs.  Norden submits that the cause of the November Application was not a matter which was its “fault”.  Norden submits that it could not have foreseen the possibility that led to the November Application.

83 Norden submitted that the essential question was “what if Norden is right and the joint expert’s evidence is not accepted?”  In circumstances where it is not currently possible to know the answer to this question, Norden submits that the appropriate costs order now is for the costs to be in the proceedings or reserved.  In this way, Norden submits that these costs will still be considered, after trial, when the answer to the essential question is known.

84 Furthermore, Norden seeks to rely on the delay in the provision of documents (Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 6) [2025] FCA 1212 (Norden No 6)) as a reason why the November Application was filed when it was, why the mediation was delayed and abandoned in close proximity and why, again, it was not the fault of Norden, which resulted in it seeking the orders it did in Norden No 9.  Certainly, Norden No 6 and the costs of the Document Application, Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 7) [2025] FCA 1333 (Norden No 7) recognise the delay and unmaintainable position of the D Martens Respondents, in relation to the provision of documents.

85 The Court has a broad power enabling it to exercise a wide discretion which must be exercised judicially, in relation to costs (see ]- ] above).  The Court must take into account the overarching purpose of civil practice and procedure provision in Part VB of the FCA.

86 It can be accepted that, although the usual rule in relation to a party seeking and being granted an indulgence would result in that party paying the costs of obtaining the indulgence, it is not a rule of rigid or unwavering application: for example, see Gain Capital UK Limited v Citigroup Inc (No 3) [2016] FCA 582 at [5]-9. Further, although a party may seek an indulgence when that party is at fault, that will not always be the circumstances of seeking an indulgence.

87 In this first regard, the costs sought by the D Martens Respondents and Mr W Martens are the costs of the November Application itself.  That application and the Orders sought by Norden were for an indulgence.  It is not determinative that Norden was not at fault, nor that the application was for an indulgence.  However, such matters are relevant and taken into account in weighing the discretion.

88 Substantive Orders were entered on the Document Application on 19 September 2025 which required the provision of documents to the (former) joint expert by 26 September 2025.  By Orders dated 3 October 2025, the (former) joint expert was to finalise his report by 31 October 2025. This report was originally required by 4 August 2025.  The mediation was set by Orders dated 20 June 2025, for the week of 15 September 2025.  This was subsequently amended.  By orders dated 5 September 2025, the mediation was altered to the week of 3 November 2025.  The parties by agreement altered this further, so that the mediation was to be conducted by way of a private mediation on 12 November 2025.  The (former) joint expert report was then provided on 10 November 2025.  Norden submits that it was the late provision of documents which caused the delay of the (former) joint expert report and hence the cancellation of the mediation.  Order 4 of the Orders of 19 September 2025 made provision for an affidavit to be provided if any document or category of document was not provided.  Mr D Martens provided an affidavit describing a category of documents which could not be produced.  Except for that category of documents (which has been explained) there is no evidence that the documents ordered to be provided by 26 September 2025, were not provided.  However, it is apparent that the (former) joint expert’s report was late, it not being provided on 31 October 2025. The need to bring the Document Application did set back the provision of the (former) joint expert report from 4 August to 31 October 2025.  Given the content of the (former) joint expert report and Norden’s complaint about the methodology, it is likely that the mediation would still have been cancelled.  However, Norden’s submission is that had this report been received on 31 October 2025, the cancellation of the mediation would not have occurred so close to the date of the mediation, and as such, it is likely that any costs thrown away would have been at least reduced.

89 Norden chose to and consented to join with the D Martens Respondents and Mr W Martens to brief the (former) joint expert.  It then sought leave (as explained in Norden (No 9)) to engage a separate expert valuer.  The underlying reason for that is not a matter of fault, however, it was a deliberate choice by Norden in conducting this litigation.

90 Returning then to Norden’s essential question.  The costs of the November Application do not have ongoing utility in the proceedings or are otherwise dependent on whether the (former) joint expert’s evidence is ultimately accepted or rejected. That is distinct to the costs of the (new) expert and (former) joint expert, such costs do have ongoing utility in the proceedings.  The costs of the November Application have been brought about because Norden initially consented to brief the (former) joint expert and then sought leave to brief a separate expert, with a consequential adjournment of the trial.

91 The essential question identified by Norden will be relevant to the issues in the trial and the costs of the trial, including the costs of each of the two expert valuers.  However, the essential question will not be determinative as to the costs of the November Application.  The risk of Norden being correct, that the (former) joint expert is not accepted was sufficient to grant Norden leave to engage a further separate expert valuer. However, the work undertaken for the November Application, and thereby the costs, do not have ongoing utility in the proceedings.

92 The submissions made by Norden do not change the proper characterisation of the November Application; it was an indulgence.  As an indulgence Norden should pay the costs of the D Martens Respondents and Mr W Martens of the November Application, on a party and party basis.

Should the Applicant pay the costs “thrown away”

93 The D Martens Respondents and Mr W Martens also seek their costs thrown away by reason of the November Orders.  The costs sought (from paragraph 4 of the D Martens Respondents Costs Application and from paragraph 1 of Mr W Martens Costs Application) as being costs thrown away are in relation to:

(a) the cancelled mediation scheduled for 12 November 2025;

(b) the vacation/adjournment of the December 2025 trial dates; and

(c) trial preparation work undertaken in anticipation of the December 2025 trial.

94 Mr W Martens Costs Application also sought (paragraph 1.b) costs thrown away because of the grant of leave to Norden to rely on a separate expert.  However, any additional fees which may be payable to Mr McGuiness because of the November Orders by Mr W Martens, would not be properly costs thrown away.  In this regard counsel for Mr W Martens sought to strike-out that aspect of his written submissions. Mr W Martens also submits that by the Applicant conducting the litigation in this way, the costs of the litigation will be increased.  That increase was recognised in Norden No 9, however an increase in the costs of the trial, are not costs thrown away.  As such, these aspects of Mr W Martens Costs Application do not require further consideration.

95 Costs thrown away is the common description for costs that have been reasonably incurred that relate to work done and wasted. In this case, the costs thrown away are said to be as a result of the November Orders (obtained on the November Application).  Generally, costs thrown away are costs that have been incurred once and will be incurred again for the purposes of the trial or the mediation, that is again fixed: Sobey v Commissioner of Taxation [2008] FCA 1621 at 21.  A causal enquiry is required, to ascertain whether the costs that were incurred would not have been incurred but for the relevant event: Cassimatis v Australian Securities and Investment Commission (2016) 334 ALR 350; [2016] FCA 131 at [56]-57.

96 The D Martens Respondents described that November Application as one which “dismantled” the existing joint-expert process and the case management arrangements for the hearing in December 2025. In the circumstances of the November Application and November Orders, it is likely that there will be some costs thrown away.  That is, the relevant event is the November Application and it is likely that it would have caused costs to be incurred or wasted, that would not have been, but for that event.

97 The mediation was cancelled on 11 November 2025, just the day before it was scheduled and just the day after receiving the (former) joint expert report: Norden (No 9) at [15]. However, as outlined above, had the (former) joint expert report been provided on 31 October 2025, then it is likely that the costs which may have been thrown away by preparation for the mediation would have been significantly reduced (perhaps even to nil).  This is evident by the correcting affidavit of the solicitor for the D Martens Respondents showing that counsel did work in preparation for the mediation on 4, 10 and 11 November.  There was also a charge on 12 November, however, the D Martens Respondents did not press for any cancellation fee by counsel, to be included in the costs thrown away.  Norden also submitted in this regard that the (former) expert report was delayed because of the delay in providing documents and the need to bring the Document Application.  However, the date for the mediation was altered and adjusted as a consequence of the Document Application.

98 In all of these circumstances then the relevant event which caused the mediation scheduled for 12 November to be cancelled was not only the actions of Norden.  If the (former) joint expert provided his report on 31 October 2025 and assuming Norden would have acted the same way, it is likely that much of those costs would not have been incurred.  As the relevant event for the incurrence of any costs claimed to be thrown away because of the cancelled mediation is multi-faceted it is not appropriate for Norden to bear those costs.  The costs thrown away because of the cancelled mediation will be costs in the proceedings.

99 The costs thrown away would not include future costs or costs which have been incurred for work undertaken which will still be useful.  Without in anyway attempting to be exhaustive, by way of example only, the preparation of a chronology is work which will be useful in the final hearing.  That work is not wasted and would not be “costs thrown away”.

100 The November Application was heard on 24 November, with judgment delivered and orders made on 25 November.  That is, almost 2 weeks prior to the December hearing, which was set to commence on 8 December for 6 days.

101 On the material currently filed by the D Martens Respondents and Mr W Martens, and as the 6 day trial was still 12 days away (being 8 working days beforehand), it is difficult to understand exactly what work and costs has been wasted because of the vacation of the trial dates or what preparation work and costs for the trial has been wasted.

102 However, all parties accepted that should orders for costs be made on any of these applications, the appropriate order was such costs to be determined by a Registrar and fixed on a lump sum basis.  As such, the proper consideration of exactly what costs would fall within “costs thrown away” can be ascertained during the process of fixing those costs on a lump sum basis.  The content of what are “costs thrown away” is well understood.

103 In the circumstances, and for the above reasons the November Application and November Orders will have been the relevant cause of costs to be incurred by the D Martens Respondents and Mr W Martens, which have been wasted.  Given the indulgence granted on the November Application by way of the November Orders, it is appropriate that Norden pay the D Martens Respondents and Mr W Martens costs throw away, because of the November Order. However, that will not include any costs claimed to have been wasted because of the cancelled mediation, those will be costs in the proceedings.

Should the Costs be Payable forthwith and determined on a Lump Sum basis?

104 The D Martens Respondents and Mr W Martens also seek that any costs order in their favour be fixed on a lump sum basis and payable forthwith.

105 There is no issue as to the fixing of any costs ordered on a lump sum basis by a Registrar: all parties agreed this was appropriate.

106 Rule 40.13 of the Rules prevents a party with a favourable costs order given on an interlocutory application from seeking for those costs to be taxed, prior to the conclusion of the proceedings.

107 The purpose behind the rule can be described as follows:

(a) to discourage interlocutory applications;

(b) to avoid the inconvenience and possible oppression involved in a series of taxations;

(c) it is usually inappropriate to require an unsuccessful party to an interlocutory process to pay costs immediately, as that party might ultimately succeed in the substantive proceedings;

(d) it enables all costs to be assessed and set-offs can be made, having regard to all of the costs ordered in the proceedings; and

good reason needs to be established for the departure from the rule, which may be appropriate when:

(e) the interlocutory process involves a discrete issue which has been resolved;

(f) there are significant costs over and above those which would have incurred had the opposite party acted with competence and diligence;

(g) the principal or substantive proceedings will not be determined for a significant period of time;

(h) the conduct of the unsuccessful party to the interlocutory process was so unreasonable that the costs of “their folly” should be immediately visited upon them, as a deterrent;

(i) following an amendment, the case is essentially a new proceeding;

(j) there is some reason to think that interlocutory disputation is having the effect of draining the ability of one side to conduct the litigation; and

(k) the interests of justice require costs to be paid forthwith.

See: Murran Investments Pty Ltd v Aromatic Bea uty Products Pty Ltd (2000) 191 ALR 579; [2000] FCA 1732 at 70; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [20]-22; Mitsubish i Motors Australia Ltd v Ripponlea Motors Pty Ltd (No 2) [2013] FCA 674 at 7; Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at 20; Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 3) [2018] FCA 6 at 15; Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd [2016] FCA 37 at 12; McKellar v Container Terminal Management Services Limited [1999] FCA 1639 at [19] and 40; Federal Treasury Enterprise (FKP) Soju zplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 at 9

108 The costs of the November Application and the costs thrown away as a result of that application and the November Orders was brought on fairly quickly and would probably have involved significant costs.   Those costs were brought about because of the way Norden conducted the litigation.  The final hearing of this proceeding is not currently listed.  It appears that it will now require 8 days.  It is not known when the Court can accommodate this hearing, taking into account the parties, witnesses and legal representatives availability.  On this basis I will assume that the principal proceeding will not be determined for a significant period of time.

109 The November Application determined a discrete issue.  That being whether there will be a single expert in the final hearing or competing experts.  Following this application, although the nature of Norden’s case remains the same, it will be conducted somewhat differently.

110 Although it is preferrable to avoid multiple or a series of lump sum costs determinations, these costs can be considered together.  Further, these costs are not dependent on the final result.  The D Martens Respondents and Mr W Martens should have these costs, in any event.

111 Norden did not act unreasonably in bringing the November Application.  Further, in these circumstances, it will not encourage further interlocutory applications if the costs are made payable forthwith: Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4) [2013] FCA 567 at 30.  The proceedings are almost ready for trial, and although there have been many interlocutory applications to date, the interlocutory disputes must nearly be at an end.

112 In balancing all of the above matters, this is a matter where there are good reasons that the costs of the November Applications and the costs thrown away, ought to be fixed on a lump sum basis, and payable forthwith.

113 The D Martens Respondents sought for any costs orders made in its favour to be paid from security already held, and then for such amount to be replenished.  However, in all the circumstances, the better approach is for all of the costs (including Norden’s Earlier Costs Orders, considered below) to be considered together, before the Registrar.

Norden’s Application

114 Norden seeks:

(1) certain earlier costs orders to be payable forthwith and determined and fixed on a lump sum basis;

(2) to be released from continuing to pay Mr McGuiness, the (former) joint expert;

(3) a variation as to the dates that the valuation is to be undertaken; and

(4) for paragraph [6.1] of the 27 August application to be dismissed, with no order as to costs.

115 In relation to the matter identified above at )] (and above at ] no other dates were sought to be identified by Norden.  Norden’s written submissions clarified that the valuation dates sought were some or all of the dates already addressed by Mr McGuiness. As such this issue no longer needs to be determined.

Earlier Costs Orders – Payable forthwith and Lump Sum?

116 Norden has the benefit of the following costs orders:

(a) On 15 August 2025, pursuant to Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965, the D Martens Respondents were ordered to pay Norden’s costs of the strike-out application (determined in Norden No 3) on an indemnity basis to be taxed if not agreed (August Costs Order);

(b) On 24 October 2025, pursuant to Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 8) [2025] FCA 1366, Mr W Martens was ordered to pay Norden’s costs of the Particulars Application, which he had unsuccessfully brought (October Costs Orders); and

(c) On 31 October 2025, pursuant to Norden N o 7, the D Martens Respondents were ordered to pay Norden’s costs of the document access application (determined in Norden No 6) on an indemnity basis to be taxed if not agreed (October Indemnity Costs Order).

(together the Earlier Costs Orders)

117 Norden now seeks for the Earlier Costs Orders to be payable forthwith and fixed by a Registrar on a lump sum basis.

118 As observed above at ] the Court has a broad discretion to award costs under s 43 of the FCA, which includes being able to make an award at any stage in a proceeding and making an award of costs in a specified sum: s 43(3)(a) and (d) of the FCA.  A party or person who is entitled to costs may apply for those costs to be awarded in a lump sum instead of, or in addition to any taxed costs: see r 40.02(b) of the Rules: Hudson v Sigalla (No 2) [2017] FCA 339 at 21. The purpose of such a rule is to avoid the expense, delay and aggravation involved in the taxation of costs process: Pa ciocco v Australian and N ew Zealand B anking Group Ltd (No 2) (2017) FCR 403; [2017] FCAFC 146 at 15.  The Costs Practice Note (GPN Costs) (Costs Practice Note) provides that there is a preference, wherever it is practical and appropriate to do so, to make a lump sum costs order.  This is to finalise costs issues and avoid potentially expensive and lengthy taxation hearings: Costs Practice Note at [3.3]. The approach to be taken should be consistent with s 37M and s 37N of the FCA: Costs Practice note at [2.1] and Hudson at [19]-[20].

119 It is a matter for the Court’s discretion as to whether it is appropriate to order that the costs be fixed by a lump sum award, there are no particular characteristics that a case must possess for it to be determined to be a suitable matter for such an award: Paciocco at [20].

120 The D Martens Respondents clarified their contention that although the Court does have power to make the Earlier Costs Orders, payable forthwith and on a lump sum basis this is not such an occasion to exercise that power.  It is submitted the r 40.13 would operate and there is no good reason to order otherwise.  The D Martens Respondents also raised matters of fairness regarding the time they had to respond to the lump sum sought by Norden.  However, as the hearing evolved and with all parties accepting that if a lump sum determination was ordered it was appropriate for that to be undertaken by a Registrar, this issue falls away.

121 Mr W Martens submitted that if any costs were to be paid forthwith, all should be ordered to be payable forthwith.  This, it was submitted, should be the approach also in relation to any future interlocutory applications.  Mr W Martens submitted that the basis for fixing the Earlier Costs Orders suffered from some evidentiary difficulties.  However, these issues also do not need to be determined, as any lump sum determination will be referred to a Registrar.  Mr W Martens also submits that in the circumstances of this case, noting the current state of the expert evidence, it would be more appropriate to deal with all of the costs issues after the trial, in the usual way.

122 The preference is now for costs to be determined on a lump sum basis.  None of the parties submitted otherwise.  The real contest is whether the Earlier Costs Orders should be payable forthwith.

123 The principles outlined at ]- ] above, in relation to the purpose behind interlocutory costs not being payable prior to the conclusion of the proceedings, and the reasons when such a departure is appropriate are equally applicable to a consideration of the Earlier Costs Orders.

124 The starting point is that it is usually inappropriate for an unsuccessful party to immediately pay the costs of an interlocutory process.  However, there can be good reason to depart from that position.  Norden will be ordered to pay the costs of the November Application and the costs thrown away by the November Orders (excluding the cancelled mediation) forthwith.  There will be a process before the Registrar, to determine those costs on a lump sum basis.  Also ordering the Earlier Costs Orders to be payable forthwith and on a lump sum basis would enable all of these costs to be considered and assessed on a lump sum basis, together.  There is an efficiency which will be gained by undertaking that together, rather than an inconvenience and possible oppression of having some interlocutory costs payable now, and some delayed.  It potentially would also enable set-offs to be considered, in relation to the various interlocutory costs ordered.  The Earlier Costs Orders related to reasonably discrete issues in the proceedings, which have been resolved.  Although I do not propose to determine the quantum of those costs, it is apparent from the material relied upon by Norden that those costs are not insignificant.  Two of the Earlier Costs Orders were made on an indemnity basis.  The August Costs Order was because the D Martens Respondents had effectively re-pleaded matters which were the subject of the Separate Question Judgment and as such was an abuse of process.  The October Indemnity Costs Order was made on the basis that the D Martens Respondents had breached previous orders of the Court, brought mostly groundless objections, most of which were not pressed, withdrawn or not successful.  As such, at least in relation to the D Martens Respondents there is a basis to say that their past conduct in the proceedings was so unreasonable that the costs should be visited upon them now (see .  The October Costs Order is different.  It is against Mr W Martens.  However, there are efficiencies which can be gained and potentially set-offs which may be able to be utilised in the costs determination process, by considering all of these costs together.

125 Further, as the D Martens Respondents and Mr W Martens have been ordered their costs as sought on these applications, it is preferrable (as was submitted by Mr W Martens) to actually assess and determine all of these interlocutory costs at this point. This does not, however, necessarily determine or even influence the costs of any future interlocutory applications.  The principles to be applied in relation to whether it is appropriate to depart from the usual position of costs of an interlocutory process awaiting the finalisation of the proceedings (r 40.13 of the Rules) remain.  The date for the final hearing is currently unknown.  It is likely to be some significant period of time in the future.

126 If the costs of the November Application and thrown away were ordered to be payable forthwith by Norden to each of the D Martens Respondents and Mr W Martens, there is at least some reason to think that the interlocutory disputation may have an effect of draining Norden’s ability to conduct the litigation.

127 In all of the current circumstances of this case, the appropriate order is that the Earlier Costs Orders be made payable forthwith, and fixed on a lump sum basis, to be determined by a Registrar.

The future costs of the (former) joint expert, Mr McGuiness?

128 Norden seeks to be released from continuing to pay the costs of Mr McGuiness, since it has now been granted leave to rely on its own separate expert.   Norden submits that this is appropriate and should be done by vacating the previous order which required the D Martens Respondents, Mr W Martens and Norden to each share the costs of Mr McGuiness, to 1/3 each.  A new order should be made which requires that the D Martens Respondents and Mr W Martens to pay Mr McGuiness costs, to ½ each.

129 As this issue evolved during the hearing, it became clear that Norden was also seeking for the orders relating to Mr McGuiness’ appointment to also be varied, so that he was then only the expert for the D Martens Respondents and Mr W Martens.

130 The relevant orders are those of 7 May 2025, which were:

Expert Evidence

3.    Pursuant to FCR Rules 5.04, 23.14 and 23.15 and in accordance with the following orders the parties appoint and rely on a single common valuation expert (Expert) to value the Fourth and Fifth Respondents (Valuation):

3.1.    at 30 June 2023;

3.2.    1 August 2023;

3.3.    21 December 2023; and

3.4.    as at the date of the Valuation.

4.    The Expert Report is to be completed by 4 August 2025 or such other time as the parties may jointly agree at the reasonable request of the Expert.

5.    The Expert is to update the Valuation as close as practicable to the trial of this proceeding.

6.    By 4.00pm on 13 May 2025, the First to Fifth and Sixth Respondents jointly nominate one Expert from the list of experts provided by the Applicant.

131 There was also Order 13 of 7 May 2025, which was as follows:

13.    The parties are in the First instance to pay the Expert’s fees and disbursements 1/3 Applicant, 1/3 First and Second Respondents, 1/3 Sixth Respondent.

132 Mr W Martens commenced his submissions on his issue that Norden should remain liable for the costs of the (former) joint expert.  It was submitted that although Norden has been permitted to engage an additional and separate expert, that does not change the position that Mr McGuiness was the Court ordered joint expert.  The D Martens Respondents submitted and Mr W Martens submitted further and in the alternative, that if the Court is minded to make the Order sought by Norden in this respect, then that should resonate in an increase in the security for costs amount which is ordered.  Mr W Martens submitted that the agreement to engage a single common expert was done on a particular basis, including in relation to the payment of his costs, and Norden should not be permitted to now change that.

133 However, the Orders of 25 November 2025, granted Norden leave to rely on a separate expert report.  It was clear that this was advanced on the basis that Norden was not going to rely on the evidence of the (former) joint expert.  It was also submitted on the November Application that a reason why Norden should not be permitted to engage a separate expert was because of these earlier litigation decisions, including engaging (and paying) a single common expert.  Those arguments were unsuccessful on the November Application.  Norden was granted leave to engage another expert.

134 Mr W Martens also submitted that it would be extremely prejudicial to his position, should he have to now pay for the costs of Mr McGuiness in a greater amount than previously agreed to.  It is obviously an unfavourable position for Mr W Martens, and not one he agreed to when the expert was engaged.  However, the submission was not developed as to how this change to the payment arrangements of the (former) joint expert affected his legal interest or otherwise damaged his ability to conduct the litigation.  It was not submitted that Mr W Martens would be unable to meet the increase in costs.

135 To regularise the proceedings, it is appropriate to make orders that there will not be a single common valuation expert.  Further orders will also be made for the D Martens Respondents and Mr W Martens to be responsible for the ongoing costs of the (former) joint expert.  These will be made with effect from the date of the hearing of this application.  This will ensure future consistency in the proceedings, resulting from the November Orders and Norden No 9.

136 This increase in costs of the D Martens Respondents and Mr W Martens has been taken into account, in the “broad brush” approach, considering an appropriate amount for security for costs.

What is outstanding from the 27 August Application?

137 Norden’s application lodged on 27 August 2025 was described as the Document Application in Norden No 6.  The Document Application sought certain identified documents with certain categories of documents and direct online access to the Systems of certain identified Companies.  Detailed Orders were entered on 19 September 2025, including that the balance of the Document Application be considered at a case management hearing on 3 October 2025.

138 From the Orders made on 3 October 2025, paragraphs [6.1] and [6.2] of the Document Application were adjourned to the trial.  Norden now seeks to have paragraph [6.1] of that Document Application dismissed.  Paragraph [6.1] of the Document Application was in the following terms:

6.    The first, second and sixth respondents:

6.1    are to pay the costs of the Expert to the date of this order, which will not be recoverable in the Proceedings.

139 This aspect of the relief received very little attention in any of the parties’ written submissions or at the hearing.  This is most likely due to the nature of the order sought.  It is simply to limit matters which are outstanding.  This does not specifically need to be adjourned to the trial.  All of the expert’s costs, of the (former) joint expert and the new expert, will need to be the subject of submissions after the trial.

140 It is appropriate for this part of the Document Application to be dismissed.  Costs of this aspect of the Document Application will remain in the proceedings.

What form should the security for costs take?

141 Norden has been successful in obtaining the Earlier Costs Orders to be payable forthwith, to be fixed on a lump sum basis.  The D Martens Respondents and Mr W Martens have also been successful in obtaining orders for costs, payable forthwith and on a lump sum basis as a consequence of the November Orders.  Two of the reasons was the efficiency to be gained in considering these matters together and potentially that costs may be able to be set-off.

142 Norden submitted that if security for costs were to be ordered, which it will, then that should be related to the awards of the Earlier Costs Orders.  It is unknown whether the quantum of those Earlier Costs Orders would be sufficient to provide the amount of security for costs that will be ordered and potentially be set-off from the costs ordered in D Martens Respondents and Mr W Martens favour.  Further, the timing of a Registrar being able to consider these costs determinations, is also unknown.

143 As such, the appropriate form of order is simply to make the security to be provided as it has previously been provided in these proceedings.  The previous order for security for costs required the security to be provided within two weeks.  However, I will grant additional time to provide this security.  This may (or may not) allow all of the lump sum costs determination to be resolved prior to the security being required to be paid.  Although usually security for costs is ordered to be provided within a relatively short period of time, in light of the trial probably not being set for several months and as it appears that the interlocutory processes are (or are almost) complete, this additional time is appropriate in the circumstances.

COSTS OF THE APPLICATIONS

144 All of the parties, seek their costs of each of the Applications.  Mr W Martens goes further and submits that the Applicant should also pay the Respondents’ costs of its application, claiming it is seeking an indulgence.

145 The costs of the security for applications have been dealt with above.

146 In the result of the remaining costs and ancillary applications which were dealt with on 9 December 2025, all parties have had some success, but not complete success.  This has been either because the parties have made appropriate concessions or because of how the applications have been determined.

147 However, these applications have carried the proceedings forward.  The parties will engage in a costs process before a Registrar to determine the amount of multiple costs orders, on a lump sum basis.  Orders have been made regularising the position of the (new) expert and the (former) joint expert.

148 The hearing of these applications occurred on a day, and it was allocated at a time, when all of the parties would have had this day scheduled for the December trial.  The hearing was conducted efficiently and effectively.

149 In all the circumstances the appropriate order for costs of the remaining applications, is for costs to be in the proceedings.

| I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley. |
Associate:

Dated: 28 April 2026

SCHEDULE OF PARTIES

| | QUD 578 of 2023 |
| Respondents | |
| Fourth Respondent: | AMAZONIA IP HOLDINGS PTY LTD ACN 159 920 877 |
| Fifth Respondent: | AMAZONIA GROUP PTY LTD ACN 600 432 997 |
| Sixth Respondent: | WESLEY ALAN MARTENS |
| Seventh Respondent: | TEASE WINIFRED MARTENS |