Finch v The Heat Group Pty Ltd (No 3)

Finch filed an application in the Federal Court of Australia to vary or set aside a costs order. The dispute concerned whether the costs estimate made under rule 40.20 of the Federal Court Rules 2011 constituted a judgment or order, and whether the costs in the appeal should be treated as costs of an interlocutory application. The court considered whether the application could be varied or set aside under rule 39.05, which allows for such changes if certain conditions are met, such as the absence of a party, fraud, or an error from an accidental slip or omission.

Finch argued that the costs order should be set aside due to misleading conduct by the respondents during the trial and appeal. However, the court found that the alleged misleading conduct did not meet the criteria for setting aside the order under rule 39.05. The court also noted that the change in the respondents' approach to the reinstatement of the substantive proceeding was not material to the decision to refuse leave to appeal or to the costs order. Furthermore, Finch did not provide sufficient evidence to support an allegation of fraud.

The court dismissed the application and granted leave to amend the application in the form of a draft Amended Interlocutory Application. The Applicant was ordered to pay the Respondents' costs of the application. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.