Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 7)

This Federal Court decision was about costs after an earlier document application, not the final outcome of the underlying commercial dispute. The broader proceeding concerned Amazonia IP Holdings Pty Ltd and related parties. The Court identified the wider case as oppression proceedings involving a shareholder dispute, and said that kind of dispute can be akin to a partnership dispute.

The applicant was Norden Holdings Pty Ltd as trustee of the Norden Family Trust. The first respondent was Martens Investments Pty Ltd as trustee of the DF Martens Family Trust. The second respondent was Mr Dwayne Martens. The Court said the first respondent remained a shareholder of the fourth and fifth respondents, and that Mr Martens was the current director and controlling mind of those companies as well as the controlling mind of the first respondent.

The immediate fight arose because the applicant said documents already covered by earlier court orders had not been properly produced. In the earlier No 6 judgment, the applicant succeeded to a very large extent. The Court again ordered production of documents and, because there had been previous non-compliance, also granted the applicant direct online access to the financial management programs used by the fourth and fifth respondents, described as the Companies' Systems.

That earlier success set up the issue in this judgment. The Court had to decide who should pay the costs of the document application and whether those costs should be on the ordinary basis or on the more serious indemnity basis.

The connection between the two decisions is important. In the earlier No 6 judgment, the Court dealt with the substance of the document application. It found the applicant was almost completely successful. The documents sought were either expressly covered by previous orders or fell within them by implication. The Court also found there had been previous non-compliance. That is why the Court did not just repeat production obligations. It went further and granted direct online access to the Companies' Systems.

Once that happened, the usual starting point on costs was that the successful party should receive its costs. But the applicant did not seek only ordinary costs. It argued that the first and second respondents should pay indemnity costs because the application had been caused by non-compliance and because the opposition to the application was not properly maintainable and had unnecessarily prolonged the issue.

The respondents tried to characterise the earlier result as mixed success. They argued the applicant should receive only 50 per cent of its costs, or that costs should be split between the first and second hearing days in a way more favourable to them. They also argued that time had been wasted because of alleged deficiencies in the applicant's affidavit evidence. The Court examined what had actually happened and rejected that overall picture.

So the costs ruling was not detached from the earlier application. It was the Court's assessment of the consequences of what had already been found in No 6, together with the way the respondents had run the hearing and the later costs submissions.

The legal issue in this judgment was about costs, not access to documents as such. The Court had to decide whether the first and second respondents should pay the applicant's costs of and incidental to the document application, and whether those costs should be awarded on the ordinary party-and-party basis or on an indemnity basis.

The Court restated the usual principles. Costs are discretionary, but the ordinary approach is that costs follow the event, so a successful party will usually receive its costs. A successful party can still be deprived of some costs if it only partly succeeded, failed on important issues, or conducted the case poorly. Indemnity costs, however, require something more. The Court said there must be some special or unusual feature, or the justice of the case must require departure from the ordinary basis.

The respondents raised three main points in resisting the applicant's position. First, they said a large part of the first hearing day had been taken up by objections to the applicant's affidavit and that this showed the applicant's evidence had serious deficiencies. Secondly, they said any costs should be borne jointly and severally by the first, second, fourth and fifth respondents, not just the first and second respondents. Thirdly, they said any costs should not be taxed until the proceeding was finalised.

The Court accepted only the last point as reflecting the usual position under the Federal Court Rules. The real contest was over whether the applicant had been sufficiently successful and whether the respondents' conduct justified indemnity costs.

The Court ordered that the first and second respondents pay the applicant's costs of and incidental to the document application on an indemnity basis, to be taxed if not agreed. The judge said the applicant had been almost completely successful on the document application, so the applicant should usually receive its costs. The Court then identified four reasons that together supplied the special or unusual features needed to justify indemnity costs.

First, the respondents had not complied with earlier court orders, including an order from 28 June 2024. Instead of seeking a variation of the orders with an explanation and a proposal for how to proceed, they denied non-compliance in written submissions. At the second and final day of the hearing, they then accepted at least some non-compliance. The Court described the earlier position as a groundless contention, or a clearly hopeless position, that ought not to have been advanced. The Court also pointed to inconsistency between the written submissions asserting compliance and later material showing some required documents were still "to be sent".

Secondly, the respondents advanced a submission said to be based on particular authorities, but when asked they were unable to take the Court to those authorities while still maintaining the submission. The Court said this was another groundless contention and that it wasted court time and the parties' time, including through an adjournment and further consideration over the luncheon break.

Thirdly, the respondents brought unnecessary and in many respects groundless objections to the affidavit in support of the document application. The Court looked closely at the numbers. There were 36 objections. Of those, 21 were not pressed or were withdrawn after some or little argument. Of the remainder, only one paragraph, six sentences and 13 individual words were struck out. None of the annexures, which ran to 140 pages, were struck out. The Court concluded that the objections were for the most part unsuccessful, yet they occupied a significant amount of hearing time.

Fourthly, the Court considered the respondents' conduct against the overarching purpose of civil procedure, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The Court said that first agitating 36 objections and then pressing only 15 with limited success did not accord with that purpose. Nor did continuing to advance in writing that there had been no non-compliance, only to accept non-compliance on the second day. The judge said that if acceptance had been made properly in writing and the categories of documents had been properly engaged with, the hearing would have taken significantly less time.

The Court also rejected the argument that the fourth and fifth respondents should share the costs burden with the first and second respondents. It noted that the second respondent was the director and controlling mind of the fourth and fifth respondents and that these were oppression proceedings involving a shareholder dispute akin to a partnership dispute. In those circumstances, the Court considered it contrary to the spirit of that quasi-partnership to pay the expense of the litigation out of the company as the general fund.

This case is a strong example of the Court looking beyond the formal question of who won and focusing on how the parties behaved. The respondents tried to argue that the applicant's affidavit problems justified reducing costs. The Court did not accept that because the factual foundation for the complaint was wrong. The respondents had not done the analysis needed to support the broad submission that a substantial portion of the affidavit was inadmissible. When this was raised at the later hearing on 24 October 2025, the respondents' solicitor accepted that no such analysis had been undertaken and the submission was sought to be withdrawn.

That detail matters for businesses because costs exposure often increases when a party overstates procedural complaints. Courts expect objections to be real, targeted and proportionate. They also expect submissions said to be based on authority to be supportable when tested. A business can lose credibility quickly if it runs broad procedural attacks that collapse under scrutiny.

The judgment also shows that non-compliance is not just about whether some documents eventually turn up. The Court focused on the mismatch between the respondents' written insistence that they had complied and later evidence showing some documents were still outstanding. In other words, the problem was not only delay. It was also the maintenance of a position that did not match the actual state of production.

For owner-managed businesses, that is a practical warning. Before any affidavit, submission or hearing, someone needs to verify what has actually been produced, what remains outstanding, what systems hold the information, and whether the court order has been read carefully enough to capture documents required by implication as well as by express wording.

For businesses, the main lesson is not a technical one about costs doctrine. It is about litigation management. Once a court orders production, the task moves out of the realm of general strategy and into operational execution. Someone has to gather records, check systems, coordinate staff, confirm what has been sent, and identify any gaps early. If that does not happen, the business may face not only another production order but also a stronger costs order.

This judgment is especially relevant to closely held companies, family businesses and trustee structures. The Court looked at who actually controlled the relevant companies and who should have ensured compliance. It was not persuaded that the companies themselves should absorb the costs consequences through company funds. Where a dispute is really between shareholders or controllers, the Court may focus on the individuals or entities behind the conduct.

The case also shows that late concessions can be expensive. The Court was critical of the respondents denying non-compliance in writing and then accepting at least some non-compliance later. If there is a genuine problem with compliance, a candid application to vary orders is usually safer than maintaining a position that may later unravel. The judgment expressly notes that if non-compliance was anticipated, the proper course was to seek variation with an explanation and a proposal forward.

Finally, businesses should read this case as a warning against procedural overreach. Taking many objections, making broad complaints about the other side's evidence, or pressing legal submissions that cannot be properly supported may feel combative, but if those steps waste hearing time they can become part of the reason for indemnity costs.

Businesses can reduce the risk of a similar outcome by treating document compliance as a project with legal oversight. Start with the order itself. Break it into categories, identify custodians, list systems that may contain responsive material, and set internal deadlines earlier than the court deadline. Keep a record of what has been collected and what has been produced.

Where the business is small and the director is also the day-to-day operator, this discipline is even more important. The Court in this case focused on the second respondent as the controlling mind and director who should have ensured compliance. That means directors should not assume that practical difficulties inside the business will excuse non-compliance unless those difficulties are put before the Court properly and in time.

If there is a real obstacle, such as volume, system access issues, missing records or staff limitations, raise it early. The judgment indicates that the better course is to seek a variation of the orders with evidence explaining the position and proposing a workable path forward. That is very different from denying non-compliance while documents remain outstanding.

Businesses should also insist on disciplined hearing preparation. Review every proposed objection to evidence and ask whether it is likely to change the result. Review every legal proposition and make sure the authority genuinely supports it. Courts do not reward procedural noise. They reward focused conduct that narrows issues and helps resolve disputes efficiently.

The hearing of the document application commenced on 5 September 2025 and resumed on 15 September 2025. Judgment on that application was delivered on 17 September 2025 in the earlier No 6 decision, with orders made on 19 September 2025. On 3 October 2025, the Court reserved the question of costs in relation to the sixth respondent and directed written submissions on the costs of the document application from the applicant and the first, second, fourth and fifth respondents. Additional submissions were sought at the commencement of a further interlocutory listing on 24 October 2025. This costs judgment was delivered on 31 October 2025.

The order made in this judgment was that the first and second respondents pay the applicant's costs of and incidental to the document application on an indemnity basis, to be taxed if not agreed. The judgment states that it does not concern the sixth respondent.

This page is based on the published Federal Court reasons in 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, delivered by Wheatley J on 31 October 2025. The reasons provide detailed support for the costs analysis and the conduct findings. They provide only limited background on the underlying commercial dispute because the Court said the reasons assumed familiarity with the earlier No 6 judgment.

As a result, this explainer focuses on what the Court clearly decided in the costs ruling: the link to the earlier document application, the conduct that justified indemnity costs, and the practical implications for businesses involved in litigation.