Trouton v Trouton

The respondents had sought, and won, a non-party costs order against the appellant. The appellant’s argument on appeal was that the respondents had failed to warn her of the possibility of such an application being brought, and that the primary judge had given insufficient weight to the lack of warning in granting the order. Considering relevant authorities and the underlying rationale for the existence of non-party costs orders, the Court concluded that on these facts the lack of warning was decisive, and that the primary judge had erred in awarding a non-party costs order in the absence of such forewarning by the respondents.

Mullins P and Flanagan and Brown JJA

18 July 2025

The plaintiff (mother of the appellant in this appeal) in Trouton v Trouton [2022] QSC 210 had been unsuccessful in her claim against the defendants (respondents in this appeal). [1]. By a non-party application, the respondents successfully sought to have the appellant pay the respondents’ costs on an indemnity basis in respect of the plaintiff’s claim. [2].

Applying the reasoning of Mason CJ And Deane J in Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192–193 (“Knight”), the primary judge concluded in the first instance costs decision that the plaintiff in the original matter could not have met a costs order made against her and was therefore a “person of straw”, and that the appellant had played an active part in the litigation. [25]–[27]. Her Honour also concluded, consistently with the third limb of the test in Knight, that the appellant had a motive for the proceeding being pursued. [33].

Crucially, the primary judge determined that the failure of the respondent to warn the appellant that a costs order might be sought against her was only one factor to be weighed up in the exercise of the Court’s discretion. [33]. The primary judge did not undertake an analysis of the circumstances in which the respondents had not given the appellant prior notice of their intention to apply for a non-party costs order against her. [34].

The primary judge ultimately concluded that it was just and equitable in the circumstances to depart from the general rule that only parties to a proceeding were subject to costs orders, and that it was in the interests of justice that an order be made that the appellant pay the respondents’ costs of the mother’s claim. [34].

One of the grounds of appeal brought by the appellant was that the primary judge had failed to take into account, or had given insufficient weight to, the lack of a warning by the respondents to the appellant that an application for non-party costs would be made. [39].

Whether there is a requirement to warn a non-party of future costs applications

The Court stated that the jurisdiction to award costs against a non-party was a “fact-specific jurisdiction”, and that any statements concerning the award of costs against a non-party must be considered in the context of the nature of the proceeding for which costs are sought against a non-party, the facts of the particular case, and the factors relevant to the application of the ultimate test in that case. [43].

The Court found that the dominant purpose for the jurisdiction to award a non-party costs order is so that in circumstances where a non-party is the real litigant, or the one for whose benefit the litigation is being conducted, the prospect of a costs order against that non-party may be the incentive to the non-party to exercise their control or influence, so that the party considers whether to compromise or otherwise bring the proceeding to an end. [60].

The Court held that where circumstances make it obvious that a non-party could be liable to pay costs, the absence of a warning of the intention to seek such a costs order may be of no consequence in that circumstance. [61]. However, where it is marginal (or not so obvious) that a non-party might be liable for such an order, a warning to the non-party of the intention to bring such an application becomes not merely a factor to be considered in those circumstances but may, in an appropriate case, determine whether it is in the interests of justice for a costs order to be made against the non-party. [61].

Whether it was obvious that the respondents might seek a non-party costs order against the appellant

The respondents submissions included a text message from the appellant sent before the matter went to trial in which she said, “Mum has nothing to lose!!!” if the matter proceeded to trial, if a settlement was not forthcoming. [63]. The Court concluded that it was apparent from that text message that the appellant had not contemplated that she might be exposed to a non-party costs order. [63]. That made it “critical and a matter of fairness for the respondents to forewarn the appellant of their intention to seek a non-party costs order against her”. [64]. The proceeding which had given rise to the order was not an obvious case for the appellant to appreciate that she might become the target of an application to pay the respondents’ costs of the proceeding. [65].

Disposition

The appeal was allowed and the non-party costs order against the appellant set aside. [79].

B Wilson of Counsel