Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5)

Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965 is a Federal Court costs decision. It followed an earlier strike-out ruling in which Wheatley J removed almost all of the challenged parts of the respondents' amended concise statement because those parts sought to relitigate matters already decided in an earlier separate question judgment.

The Court then had to decide who should pay the costs of that strike-out application, and on what basis. Wheatley J held that the applicant was the successful party, that the strike-out application was a sufficiently self-contained part of the litigation to justify an immediate costs order, and that indemnity costs were appropriate because the respondents had tried to re-run issues already finally determined. The First and Second Respondents were ordered to pay the applicant's costs of and incidental to the strike-out application on an indemnity basis, to be taxed if not agreed.

The available judgment shows that the broader proceeding was, in substance, a shareholders' dispute involving Amazonia IP Holdings Pty Ltd and related parties. 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, and the second respondent was Dwayne Fredericks Martens. The judgment also refers to the Fourth and Fifth Respondents as companies in which the applicant held shares, and notes that oppression allegations under the Corporations Act 2001 (Cth) were part of the broader proceeding.

A major earlier step in the case was a separate question decided by Needham J. That question asked whether the applicant's shares in the Fourth and Fifth Respondents were validly transferred to the First Respondent on or about 27 June 2023. On 1 August 2024, after a hearing on 24 July 2024, Needham J answered that question no. The costs judgment states there was no appeal from that decision.

That earlier ruling mattered because it finally determined an important issue between the parties. After it was delivered, the parties amended their concise statements. The respondents filed their amended concise statement on 17 March 2025. The applicant then applied on 1 April 2025 to strike out various parts of that pleading. The strike-out application was heard on 28 April 2025, and on 19 June 2025 Wheatley J delivered the strike-out judgment in [2025] FCA 661.

The effect of the strike-out orders was that almost all of the challenged parts of the respondents' amended concise statement were struck out. The reason was that those parts sought to relitigate facts and findings already determined in the separate question judgment. Wheatley J treated that as an abuse of process. The later judgment, [2025] FCA 965, did not revisit the merits of the share transfer dispute. Instead, it dealt with the costs consequences of the strike-out application.

The immediate issue in [2025] FCA 965 was not whether the share transfer was valid. That had already been answered in the separate question judgment. The issue was whether the applicant should recover the costs of the strike-out application, whether those costs should be ordered immediately rather than left until the end of the case, and whether the costs should be on the ordinary party and party basis or the more serious indemnity basis.

The respondents accepted that the strike-out application had been determined in the applicant's favour, but they argued for a softer costs outcome. Their preferred position was that costs be reserved. Failing that, they said costs should be costs in the proceedings. Failing that, they said any costs order should be limited to the ordinary party and party basis. They argued, among other things, that the dispute was ongoing, that they would seek leave to amend again, that the strike-out application did not amount to an event in the relevant sense, and that they had advanced a tenable position in good faith.

The applicant argued that it had been entirely successful and that indemnity costs were justified because the respondents had wrongfully sought to relitigate matters already determined in the separate question judgment. The applicant also submitted that costs should be ordered against the First and Second Respondents only, because the proceeding was effectively a shareholder dispute and it would generally be oppressive for the companies to expend funds on that contest.

So the Court had to answer three practical questions. First, was the strike-out application a sufficiently discrete and detached part of the litigation to justify an immediate costs order? Second, was the applicant the successful party in the ordinary sense? Third, was there some special or unusual feature that justified indemnity costs rather than the usual basis?

Wheatley J held that the applicant should receive its costs of the strike-out application. The Court rejected the respondents' arguments that costs should be reserved or made costs in the proceedings. Although the strike-out application was interlocutory and did not finally determine the whole case, the Court held that this did not prevent an immediate costs order. The application concerned a discrete aspect of the litigation that was sufficiently self-contained and detached from the final hearing.

The Court emphasised that the challenged parts of the respondents' amended concise statement had been struck out because they sought to relitigate matters already determined in the separate question judgment. Those issues would not be part of the final hearing because they had already been decided. That made the strike-out application a proper subject for a separate costs order now, rather than later.

The Court also held that the applicant was plainly the successful party. It had obtained almost all of the relief it sought on the strike-out application. There was no disentitling conduct by the applicant that would justify depriving it of costs.

On the basis of costs, Wheatley J went further and ordered indemnity costs. The Court said that departing from the ordinary party and party basis requires some special or unusual feature, but that the recognised categories are not closed. Here, the Court found that the respondents had sought to relitigate matters already determined in the separate question judgment, had invited inconsistent findings, and had advanced contentions that any properly advised litigant would have understood had no chance of success. The Court rejected the respondents' submission that their position was reasonable or tenable.

The formal order was that the First and Second Respondents pay the applicant's costs of and incidental to the strike-out application on an indemnity basis, such costs to be taxed if not agreed.

This case is a useful reminder that procedural documents can create major cost exposure. The problem here was not simply that the respondents lost an argument. It was that the Court found their amended concise statement tried to re-open matters already finally decided. In other words, the issue was not ordinary disagreement about evidence or legal characterisation. It was an attempt to put back into play matters that the Court had already resolved.

The judgment repeatedly links that conduct to abuse of process. Wheatley J referred back to the strike-out judgment and noted that the respondents were bound by the earlier judicial determination, including the finding that there was no agreement, and that the challenged pleading invited inconsistent findings with the separate question judgment. The Court expressly treated that as a recognised category of abuse of process.

For businesses, the practical point is that pleadings, concise statements and amendments are not just drafting exercises. They must be checked against the procedural history of the case. If there has already been a separate question, a preliminary issue, a strike-out ruling, or another final determination on a point, later documents need to respect that result. Reframing the same issue in slightly different language may still be treated as relitigation.

The judgment also shows that the Court will look at who is really driving the dispute. The applicant argued that the proceeding was effectively a shareholder dispute and that it would generally be oppressive for the companies to spend money on it. Wheatley J accepted that the essence of the dispute was a shareholders' dispute and ordered costs against the First and Second Respondents only. Even though there is no general rule preventing companies from spending money on this kind of litigation, the Court considered the nature of the dispute and the relationship between majority and minority interests.

Business owners should read this case as a warning about litigation discipline. The Court was not punishing a party merely for losing. It was responding to an attempt to re-run issues that had already been finally decided. That is a very different situation from making a reasonable argument on an undecided point. Once a court has finally determined an issue, later pleadings and submissions need to work within that framework.

If your business is involved in a founder dispute, shareholder dispute, joint venture breakdown or control fight, this matters because those cases often involve multiple interlocutory steps. Separate questions, amendments, strike-out applications and procedural contests can all generate costs exposure before the main trial. A business that treats those steps casually can end up paying substantial legal costs even if the final hearing is still some way off.

The case also matters for directors and controllers deciding how litigation should be funded. The Court's reasoning suggests that where the real contest is between shareholders, it may be inappropriate for company funds to carry the burden of that fight. That does not create a universal rule, but it is a real risk factor in corporate disputes.

In practical terms, businesses should build a simple process before filing any amended pleading. Gather every earlier judgment, order and transcript that finally determined an issue. Map each proposed allegation against those findings. Ask whether the allegation depends on a factual premise already rejected, whether it would invite an inconsistent finding, and whether the point has any real prospect of success. If the answer is yes to any of those concerns, the pleading should be reconsidered before filing.

This judgment is also a reminder that courts can make costs orders on interlocutory applications immediately. You cannot assume that costs will be sorted out only at the end of the case. If an application is self-contained and will play no further part in the proceeding, the Court may deal with costs then and there.

The key dates visible from the judgment are these. The separate question was heard on 24 July 2024 and decided on 1 August 2024. The respondents' amended concise statement was filed on 17 March 2025. The applicant's strike-out application was filed on 1 April 2025 and heard on 28 April 2025. The strike-out judgment was delivered on 19 June 2025. The costs judgment was delivered on 15 August 2025.

This page explains the costs ruling only. It does not attempt to give a complete account of the final outcome of the broader proceeding, because that is not fully set out in the judgment text summarised here.

This explainer is based on the Federal Court judgment in Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 5) [2025] FCA 965, together with the judgment's references to the earlier related decisions [2024] FCA 845 and [2025] FCA 661.

The available text is strongest on the costs reasoning and the procedural history of the strike-out application. It is less complete on the full commercial background and the role of every party in the broader dispute. Readers should therefore treat this page as a practical guide to the costs decision and not as a complete history of the entire litigation.