› construction of prior costs order made following court-ordered mediation
› whether trust assets liable for applicants’ costs of unsuccessful appeal and collateral proceeding
› proposed order not presented as consent order
› objective construction
› temporal exclusion
› preferred construction excludes costs incurred from 13 November 2020
› receivers justified in making final distribution
Practice and Procedure
› orders
› whether prior order should be varied under r 39.05 of the Federal Court Rules 2011 (Cth)
› variation unnecessary
› reasons clarify proper construction
› costs
› application to enlarge cap on receivers’ legal costs
› application refused
Quick Take
1Where proposed orders transmitted to the court following mediation are described as 'not opposed' rather than 'consented to', the court will not infer a concluded agreement that the orders be made; the distinction between non-opposition and consent is determinative of whether a binding compromise exists.
2An order that does not reflect the intention of the court (FCR r 39.05(e)) need not be formally varied where the court's reasons sufficiently clarify the proper construction of the order, particularly where the order has already been acted upon in subsequent proceedings.
3Where complex proposed orders emerge following mediation with any qualification as to consent, the preferable course is to require oral argument before perfecting the orders rather than making them in chambers.
Case Details
Citation[2026] FCA 971
CourtFCA
JurisdictionCommonwealth
Decision Date14 July 2026
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