Background
SLB Investments Queensland Pty Ltd, a company in liquidation, is the plaintiff in ongoing proceedings against Queensland Motorways Management Pty Ltd and two government defendants. Queensland Motorways sought further security for its costs of the litigation, covering two future periods designated as Tranche 6B (10 April 2024 – 31 December 2024) and Tranche 7 (1 January 2025 – 31 December 2025). The dispute had two distinct limbs: the quantum of security required, and the form in which it should be provided. Five earlier tranches of security had been provided, by consent, through a “Double Deed Arrangement” comprising an AmTrust Specialty Limited deed of indemnity and an LCM Funding Pty Ltd deed poll.
In the principal decision ([2026] QSC 81, delivered 24 April 2026), Williams J ordered security of $450,000 for Tranche 6B and $1,600,000 for Tranche 7, and determined that security should be provided substantially in the form of the existing Double Deed Arrangement — rejecting the first defendant’s preferred form of payment into court or an unconditional bank guarantee. The parties were then directed to file submissions on the precise form of orders and the question of costs, but could not agree on either.
The first defendant sought to introduce substantive amendments to the AmTrust Deed of Indemnity after the principal decision, principally to add a “Judgment Rate” definition and new clauses extending AmTrust’s liability to cover statutory interest — including under the five prior tranche deeds — arguing this clarified an “obvious ambiguity.” The plaintiff opposed all substantive changes as beyond scope and procedurally impermissible.
The Court’s Holding
Williams J rejected all of the first defendant’s proposed substantive amendments to the AmTrust Deed of Indemnity. The court held that the first defendant had made a deliberate forensic choice during the hearing of the amended application to focus solely on its preferred form of security (payment into court or bank guarantee), without advancing any alternative argument proposing amendments to the Double Deed Arrangement should its primary position fail. Having lost on the form of security, the first defendant could not now seek a “second go” at amending the deed it had previously declined to engage with. The proposed new Clause 3 — which would have extended AmTrust’s obligations to the five prior tranche deeds — was also beyond the scope of the application entirely. In any event, the court found the amendments were unnecessary because statutory interest under s 59 of the Civil Proceedings Act 2011 (Qld) was already encompassed within the existing definition of “Indemnified Sum,” and security is protection against the risk that a costs order may go unsatisfied, not a complete indemnity.
On costs, the court found that the two issues — quantum and form — were sufficiently distinct and discrete to warrant separate costs treatment. Special or exceptional circumstances existed, given that the first defendant had sought to depart from the established Double Deed Arrangement despite five prior tranches having been provided in that form by consent. The first defendant succeeded on quantum (the amounts ordered were closer to its position) and the plaintiff succeeded entirely on the form of security. Accordingly, the court ordered split issue-based costs: the plaintiff pays the first defendant’s standard-basis costs on the quantum issue, and the first defendant pays the plaintiff’s standard-basis costs on the form issue. A global “no order as to costs” (effectively netting off) was rejected as insufficiently principled given the asymmetry in the weight and complexity of the two issues.
Key Takeaways
- A party that elects not to propose amendments to a proposed security instrument during the hearing of an application — reserving the point in case it wins — cannot introduce those amendments as a matter of course after losing on the primary issue; the court will hold it to its forensic choice.
- Proposed amendments to a deed of indemnity that seek to alter arrangements under prior, separate tranche deeds are beyond the scope of an application limited to new tranches and will be rejected.
- Statutory interest under s 59 of the Civil Proceedings Act 2011 (Qld) on adverse costs orders is already captured by a deed of indemnity that covers “any sum or sums which the claimant is legally liable to pay to the respondent in respect of an adverse costs order”; separate drafting is not required.
- Where a security for costs application involves two genuinely discrete issues with opposite outcomes, the court may apportion costs issue by issue rather than seeking a single “event” winner or making no order as to costs.
Why It Matters
This decision reinforces the discipline courts expect of parties in complex interlocutory litigation. Practitioners advising defendants in security for costs applications must engage fully with all potential issues — including the precise terms of any proposed security instrument — at the hearing stage and not reserve alternative arguments as a fallback. Forensic choices have consequences: a party that runs a single position and loses cannot reopen the contest on a narrower alternative basis under the guise of settling the form of orders.
The split costs order is also practically significant. It confirms that Queensland courts will apply r 684 of the Uniform Civil Procedure Rules 1999 (Qld) to award issue-based costs where the evidence and submissions are readily divisible, and will not simply “net off” competing outcomes when one issue dominated the hearing. For insolvency practitioners and litigation funders managing insolvent plaintiffs — where security for costs applications are a recurring feature — the decision provides a clear signal that the form of security deserves as much attention at the hearing as the quantum.