Aesthete No 3 Pty Limited ACN 127 464 966 v Gilmore Finance Pty Limited ACN 104 792 627

Aesthete No 3 Pty Limited, trading as Aesthete, brought an action against Gilmore Finance Pty Limited, trading as Gilmore Finance, in the Federal Circuit Court of Australia. Aesthete sought relief for breaches of fiduciary duty, misleading and deceptive conduct, and statutory breaches under the Competition and Consumer Act 2010. Aesthete claimed damages and an account of profits in the context of a loan agreement and subsequent financing arrangements. Gilmore Finance denied the allegations and counterclaimed for the recovery of outstanding debts.

The primary judge made orders regarding costs, including a finding that Gilmore Finance's conduct was vexatious and oppressive. Aesthete sought a rehearing of the costs decision on the basis that the orders were not fair and reasonable. The primary judge had found that the indemnity principle applied, and the costs were to be awarded on a party/party basis. Aesthete argued that the indemnity principle was inapplicable because the primary judge had failed to consider the proportionality of the costs. Gilmore Finance contended that the primary judge's costs orders were fair and reasonable and that the appeal should be dismissed.

The Full Court of the Federal Circuit Court considered the appeal and found that the primary judge's approach to costs was fundamentally sound. The Full Court held that the primary judge had appropriately considered the relevant principles and made findings about the proportionality of costs. The Full Court found that Aesthete's argument that the indemnity principle was inapplicable due to a failure to consider proportionality was without merit. The Full Court further held that the primary judge had correctly assessed the parties' conduct and that the costs orders were fair and reasonable. The appeal was dismissed with costs.

The Full Court made no orders varying the orders of the primary judge, affirming the costs orders made in the Federal Circuit Court of Australia.