Background
Following a six-week trial in a shareholder class action, Murphy J gave judgment on the common questions in favour of the applicants. On 3 June 2026, the Court ordered Brambles to pay the applicants’ costs, apart from costs associated with one witness, with the amount to be assessed on a lump-sum basis.
Brambles sought to stay that costs-assessment process pending its proposed appeal to the Full Court and any further High Court appeal. It contended that an assessment would be lengthy and expensive, estimating its own costs at $170,000 to $220,000, and could be wasted if the appeal altered or overturned the costs orders.
The Court’s Holding
The Court dismissed Brambles’ application to stay the lump-sum costs assessment. Although Murphy J accepted that Brambles had arguable appeal points and that the assessment could involve substantial work, the balance of convenience did not favour a stay.
A stay would deprive the successful applicants of interest until a costs judgment was entered, while giving Brambles the corresponding benefit of retaining the funds. Given the likely scale of recoverable costs, estimated at $10 million to $12 million, and the likely timing of a complex appeal, the foregone interest could be $1 million to $1.2 million for one year and materially more if the stay lasted longer. That prejudice substantially exceeded Brambles’ estimated assessment expense. The Court also considered that work done in an assessment could remain useful if Brambles succeeded only in part on appeal.
Key Takeaways
- An arguable appeal does not itself justify staying a costs assessment; the balance of convenience remains decisive.
- Foregone interest on unassessed costs may be significant prejudice where the successful party’s likely costs are large and the appeal timetable is uncertain.
- A party seeking a stay should address whether it can mitigate the successful party’s interest loss.
Why It Matters
The decision confirms that, in large class actions, a pending appeal will not necessarily prevent a successful party from progressing a lump-sum costs assessment. Courts will compare the concrete cost of potentially wasted assessment work with the financial prejudice caused by delaying the entry of a costs judgment.
It also distinguishes cases where an appeal hearing is imminent: uncertainty and delay in a substantial appeal can weigh strongly against a stay.