Gilmore Finance Pty Ltd v Aesthete Pty Ltd (No 2)

Gilmore Finance Pty Ltd (the applicant) sought to appeal a decision of the primary judge, but the appeal was dismissed. The respondents were Aesthete Pty Ltd (first to third respondents) and two other parties (fourth and fifth respondents). The dispute concerned the costs of the appeal proceedings.

The primary legal issue before the Court of Appeal was whether the unsuccessful applicant should be ordered to pay the costs of two sets of respondents who were separately represented, given that there was no conflict of interest or likelihood of conflict between them. The court also had to determine the appropriate orders regarding the costs of the fourth and fifth respondents, who had sought their own costs against the applicant.

The Court of Appeal, comprising Gleeson, Leeming and Kirk JJA, determined that the applicant should pay the costs of the first to third respondents in a fixed amount. However, the court made no order as to the costs of the fourth and fifth respondents, meaning they were to bear their own costs. This decision reflected the court's assessment of the circumstances, including the absence of any conflict between the respondents.

Consequently, the applicant was ordered to pay the first to third respondents' costs of the Notice of Appeal and Summons seeking leave to appeal in the fixed amount of $127,000. No order was made as to the costs of the fourth and fifth respondents in the Court of Appeal, with the intent that they bear their own costs. However, the fourth and fifth respondents were ordered to pay the applicant’s costs of their application for costs in the Court of Appeal.