Brand2Content t/as Franchise Works v Dalby

The appeal concerned an application for costs orders against a non-party, Adam Dalby, who was the common director of the defendant/appellant companies, Brand2Content Pty Ltd (trading as Franchise Works) and Franchise Works Pty Ltd. The dispute arose from an appeal concerning the exercise of the court's discretion to award costs against a non-party, and the application of an offer of compromise under UCPR 41.14.

The primary legal issues before the court were whether it was in the interests of justice to order Adam Dalby, as a non-party and common director, to pay the costs of the appeal, and whether the costs should be assessed on an ordinary or indemnity basis. This involved considering the factors relevant to the court's discretion in awarding costs against individuals who are not parties to the litigation but have a significant role in the proceedings.

The court determined that Adam Dalby was to pay the costs of the appeal. The costs were ordered to be assessed on the ordinary basis up to 16 March 2018, and on an indemnity basis thereafter, reflecting the application of the offer of compromise provisions. This outcome indicates the court found sufficient grounds to exercise its discretion to order the non-party director to bear the costs of the appeal.