Gooley v Colley (No 2) - [2025] NSWSC 1003

Supreme Court

New South Wales

Medium Neutral Citation: Gooley v Colley (No 2) [2025] NSWSC 1003
Hearing dates: On the papers
Date of orders: 3 September 2025
Decision date: 03 September 2025
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
See orders at [17].

Catchwords:
COSTS – no question of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Calderbank v Calderbank [1976] Fam 93
Gooley v Colley [2025] NSWSC 875
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No. 2) [2024] NSWCA 274
Oikos Constructions Pty Ltd v Ostin (No 2) [2021] NSWCA 98

Category: Costs
Parties: Brett Raymond Gooley (First Plaintiff)
Service Gooley (GFT) Pty Ltd (ACN 662 957 888) (Second Plaintiff)
Motasea Pty Ltd (ACN 003 668 424) (Third Plaintiff)
John Christopher Colley (First Defendant)
Timber Industries (SI) Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr J Knackstredt (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)
Solicitors:
Macpherson & Kelley Lawyers (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)

File Number(s): 2024/326226
Publication restriction: N/A

Judgment

These reasons concern the costs of these proceedings, in which the principal judgment was published on 7 August 2025: Gooley v Colley [2025] NSWSC 875.
In the principal judgment at [89]-[96], I expressed a preliminary view that the overall outcome of the proceedings warranted the costs discretion being exercised by ordering the plaintiffs and the defendants to pay their own costs of the proceedings.
After considering the written submissions subsequently received from the parties in relation to costs, I have determined that the costs discretion should be exercised in a manner that follows the event of each individual plaintiff’s distinct claim for declaratory relief relating to specific invoices that the defendants issued to that plaintiff for fees for accounting and taxation services, [1] taking into account the plaintiffs’ rejection of a Calderbank offer [2] made by the defendants on 27 February 2025. The defendants rely on that offer as warranting an order that the plaintiffs (collectively) pay the defendants’ costs of the proceedings. The defendants do not submit that the whole or any part of their costs should be paid on an indemnity basis. Any costs order in the defendants’ favour will apply only to legal costs incurred by the defendants during the period in which they were legally represented in these proceedings. The defendants were not legally represented at the time of the final hearing.
1. Oikos Constructions Pty Ltd v Ostin (No 2) [2021] NSWCA 98 at [10]-[16] (White JA, Basten and Macfarlan JJA agreeing).
2. Calderbank v Calderbank [1976] Fam 93.
As recorded in the principal judgment at [18], the three plaintiffs collectively sought a declaration that was not referable to any particular invoice issued by the defendants in terms that “no sum is owing by the plaintiffs, or any of them, to the defendants, or any of them” (prayer 4 of the Amended Summons). In opening submissions, that claim was advanced as the…

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.

Continue reading Gooley v Colley (No 2)

Details

AGLC: Gooley v Colley (No 2) [2025] NSWSC 1003
Case: [2025] NSWSC 1003
Decision Date: 03 September 2025

CaseChat Overview and Summary

In the Federal Court of Australia, Gooley v Colley (No 2) was a matter involving a dispute between the plaintiff, Gooley, and the defendant, Colley. The case focused on the issue of costs and whether there was a question of principle that justified the court awarding costs to the party that was not successful in the case. The Federal Court of Australia was tasked with determining whether the trial judge had correctly exercised his discretion in awarding costs to the successful party.

The primary legal issue in the case was whether the trial judge had erred in law by failing to consider whether there was a question of principle that justified awarding costs to the unsuccessful party. The court was required to assess whether the trial judge had correctly exercised his discretion in determining that there was no question of principle that warranted such an award. The court also had to determine whether the trial judge had given appropriate weight to the relevant factors in making his decision.

The court held that the trial judge had not erred in law and had correctly exercised his discretion in determining that there was no question of principle that justified awarding costs to the unsuccessful party. The court found that the trial judge had given appropriate weight to the relevant factors in making his decision, and that his decision was not an unreasonable one. The court also noted that the unsuccessful party had not demonstrated that the trial judge's decision had resulted in a miscarriage of justice or that it was otherwise unjust.

The court dismissed the appeal and upheld the trial judge's decision not to award costs to the unsuccessful party. The court held that there was no question of principle that warranted such an award, and that the trial judge had correctly exercised his discretion in making his decision. The court found that the unsuccessful party had not demonstrated that the trial judge's decision had resulted in a miscarriage of justice or that it was otherwise unjust.

Orders