Findex Group Limited v McKay (No 2) - [2023] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Findex Group Limited v McKay (No 2)
Citation:	[2023] ACTSC 43
Hearing Dates:	30 January, 9 March 2023
DecisionDate:	10 March 2023
Before:	McWilliam AsJ
Decision:	(1) The defendant is to pay the plaintiffs’ costs of and in relation to the following matters: a. The plaintiffs’ application filed 12 November 2019, seeking to amend the statement of claim, with such costs limited to commence from the date the application was served on the defendant, b. The defendant’s application seeking summary dismissal filed 6 April 2020, c. The plaintiffs’ costs thrown away by the defendant’s amended application filed 22 June 2020, which was then not pursued, including: i. The costs of responding to the affidavit of the defendant affirmed 1 June 2020, ii. The plaintiffs' application filed 25 August 2020 and notice to produce, and iii. The directions hearings on 22 June and 2 October 2020. (2) The costs payable in order 1 above are to be either agreed or assessed forthwith, but any resulting assessment is not to be enforced by way of judgment or otherwise until the conclusion of this proceeding. (3) The Court certifies for the appearance of all counsel, including senior counsel, on the hearing of the interlocutory application.
Catchwords:	COSTS – whether indemnity costs should be ordered – whether defendant unreasonably conducted application
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 505, 513, 1701, 1739 Protection of Public Participation Act 2008 (ACT)
Cases Cited:	B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd (No 2) [2019] FCA 925 Dibeek Holdings Pty Ltd v Notaras [1998] ACTSC 9; 143 FLR 132 Doyle v Gillespie [2010] ACTSC 21; 4 ACTLR 188 Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1 Findex Group Limited v McKay [2022] ACTSC 192 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Harry Smith Care Sales Pty Ltd v Claycom Vegetables Supply Co Pty Ltd (1978) 29 ACTR 21 J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd (No 4) [2015] FCA 218 Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 Latoudis v Casey (1990) 170 CLR 534 Media Ocean Ltd v Optus Mobile Pty Ltd (No 6) [2009] FCA 1319 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Pesec v Consolidated Builders Ltd (No 4) [2021] ACTSC 188 Richmond v Ora Gold Ltd [2020] FCA 70 Thunderdome Racetiming & Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Parties:	Findex Group Limited (First Plaintiff) Findex Services Pty Ltd (Second Plaintiff) Financial Index Australia Pty Limited (Third Plaintiff) Spiro Paule (Fourth Plaintiff) Danielle Bartholomeusz (Fifth Plaintiff) Phillip Hart (Sixth Plaintiff) David McKay (Defendant)
Representation:	Counsel M A Friedgut (Plaintiffs) M A Karam (Defendant)
Solicitors Harmers Workplace Lawyers (Plaintiffs) Just Dispute Resolution (Defendant)
File Number:	SC 464 of 2019

McWilliam AsJ

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] ACTSC 43
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Findex Group Limited and others (collectively referred to as the plaintiffs) filed a proceeding against David McKay (the defendant) for various claims. The case, Findex Group Limited v McKay (No 2), saw a prior interlocutory application for summary dismissal, which was not granted. Both parties sought costs related to specific applications and procedural steps in the proceeding. The court had to determine whether to make a costs order at that stage or defer it until the conclusion of the trial, and if so, which party should bear the costs and on what basis.

The court found that resolving the question of costs at that stage was in the interests of justice, given the detailed procedural history and the complexity of the applications in question. The court then examined the costs associated with the defendant's application for summary dismissal, which the plaintiffs successfully defended. The court ruled that the defendant should pay the plaintiffs' costs for that application. Regarding the plaintiffs' unnecessary application to amend the statement of claim, the court found that the defendant unreasonably opposed it and ordered the defendant to pay the costs of that application, limited to the period from when it was served on the defendant. Lastly, the court held that the defendant should pay the costs thrown away by his amended application filed on 22 June 2020, which was later abandoned. However, the court decided against ordering indemnity costs, as the PoPP Act issue had not been determined.

The court ordered that the costs payable be either agreed or assessed forthwith, but any resulting assessment would not be enforced until the conclusion of the proceeding. Finally, the court certified for the appearance of counsel, including senior counsel, on the hearing of the interlocutory application.

Orders