Findex Group Pty Ltd v McKay (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Findex Group Pty Ltd v McKay (No 2)

Citation: 

[2023] ACTCA 43

Hearing Date: 

Decided on the papers

Decision Date: 

29 November 2023

Before:

Mossop, McWilliam and Taylor JJ

Decision: 

1.   Order 8 made on 22 September 2023 is discharged.

2.   The costs the subject of order 7 made on 22 September 2023 are not to be assessed until the proceedings in the Supreme Court end.

3. In any assessment of the costs the subject of order 7 made on 22 September 2023, the registrar is directed, pursuant to r 1754(2) of the Court Procedures Rules 2006 (ACT), to consider the draft Notice of Appeal, amended draft Notice of Appeal and Notice of Appeal and completely or partly disallow the costs of those documents if the registrar considers that the documents or any of them are unnecessarily lengthy or otherwise within the scope of r 1754(2)(b).

Catchwords: 

COSTS – Whether costs should be withheld from successful party – whether award of solicitor/client or indemnity costs should be awarded to successful party – excessively long Notice of Appeal – party/party costs awarded – costs to be assessed following finalisation of first instance proceedings

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 1701(2), 1705, 1721, 1726, 1754(2), 5001, Pt 2.17

Cases Cited: 

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8

Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33

Findex Group Pty Ltd v McKay [2023] ACTCA 36

Latoudis v Casey (1990) 170 CLR 534

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Parties: 

Findex Group Ltd ( First Appellant)

Findex Services Pty Ltd (Second Appellant)

Financial Index Australia Pty Ltd (Third Appellant)

Spiro Paule (Fourth Appellant)

Danielle Bartholomeusz nee Ludbey (Fifth Appellant)

Phillip Hart (Sixth Appellant)

David McKay ( Respondent)

Representation: 

Counsel

M A Friedgut ( Appellants)

B Webster ( Respondent)

Solicitors

Harmers Workplace Lawyers ( Appellants)

Just Dispute Resolution ( Respondent)

File Number:

ACTCA 19 of 2023

Decision Under Appeal: 

Court: Supreme Court of the ACT

Before: McCallum CJ

Date of Decision: 12 May 2023

Case Title: Findex Group Limited v McKay (No 3)

Citation: [2023] ACTSC 108

THE COURT:

Introduction

1. On 22 September 2023 the Court of Appeal allowed an appeal against interlocutory orders made by a judge of the Supreme Court: Findex Group Pty Ltd v McKay [2023] ACTCA 36. The matter was remitted to the Supreme Court to be determined according to law. An order was made that the respondent (Mr McKay) pay the appellants’ (Findex) costs of the application for leave to appeal, appeal and notice of contention. That order was made subject to the entitlement of either party to seek different costs orders within seven days. Mr McKay sought a different costs order.

2. The orders sought by Mr McKay were that he pay only 60 percent of Findex’s costs, that Findex bear its own costs of the amendment to the draft Notice of Appeal…