Michael Wilson & Partners Ltd v Porter (No 3)

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FEDERAL COURT OF AUSTRALIA

Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998  

File number: NSD 767 of 2021
Judgment of: STEWART J
Date of judgment: 26 August 2022
Catchwords: COSTS – application for indemnity costs – where application in respect of which costs are sought was shockingly poorly prepared and run, cast scandalous allegations about like confetti, was hopeless, and should never have been brought – application granted  
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37N(1)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 17.1

Costs Practice Note (GPN-COSTS)   

Cases cited:

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333

Christeas v Christeas [2021] HCA 29; 393 ALR 389

Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641; 402 ALR 659

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

House v The King [1936] HCA 40; 55 CLR 499

Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561

McIlraith v Ilkin (Costs) [2007] NSWSC 1052

Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116

Michael Wilson & Partners Ltd v Porter [2022] FCA 336

Michael Wilson & Partners Ltd v Porter (No 2) [2022] FCA 901

Michael Wilson & Partners Ltd v Porter (High Court of Australia, Keane J, 17 August 2022)

Mumbin v Northern Territory (No 2) [2020] FCA 475

Porter v Dyer [2022] FCAFC 116; 402 ALR 659

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 31
Date of last submissions: 24 August 2022
Date of hearing: Determined on the papers
Solicitor for the Applicant: M E Wilson
Counsel for the Respondents: S Golledge SC and N Bailey
Solicitor for the Respondents: Mills Oakley

ORDERS

NSD 767 of 2021
BETWEEN:

MICHAEL WILSON & PARTNERS LTD

Applicant

AND:

JASON LLOYD PORTER

First Respondent

RICHARD MORETTI

Second Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

26 AUGUST 2022

THE COURT ORDERS THAT:

1.The applicant pay the respondents’ costs of the applicant’s interlocutory application filed on 6 May 2022 on an indemnity basis.

2.The respondents’ costs of the interlocutory application be determined on a lump-sum basis.

3.On or before 16 September 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

4.Within 14 days of service on it of the respondents’ costs summary pursuant to order 3, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

5.Within seven days of service of the applicant’s costs response pursuant to order 4, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

6.The determination of the lump-sum costs referred to in order 2 be referred to the Registrar of the Court to whom the determination of the…

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Details
Case
[2022] FCA 998
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Michael Wilson & Partners Ltd sought indemnity costs against Porter. The application for indemnity costs related to an interlocutory application brought by Michael Wilson & Partners Ltd against Porter on 6 May 2022. The primary legal issue before the court was whether Michael Wilson & Partners Ltd was entitled to indemnity costs due to the poor preparation and execution of the interlocutory application against Porter. The court needed to determine if the application was shockingly poorly prepared, cast scandalous allegations, was hopeless, and should never have been brought.

The court found that the application was shockingly poorly prepared and run, casting scandalous allegations about Porter like confetti. The application was deemed hopeless and should never have been brought. The court granted the application for indemnity costs, noting the egregious nature of the application against Porter. The court also outlined the process for determining the lump-sum costs of the interlocutory application, including the submission of affidavits and written submissions by the parties.

The final orders included that Michael Wilson & Partners Ltd pay Porter’s costs of the interlocutory application on an indemnity basis. The costs were to be determined on a lump-sum basis and referred to the Registrar of the Court. The parties were required to file affidavits and written submissions in accordance with the specified timelines and practice notes. These orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant pay the respondents’ costs of the applicant’s interlocutory application filed on 6 May 2022 on an indemnity basis.

2. The respondents’ costs of the interlocutory application be determined on a lump-sum basis.

3. On or before 16 September 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

4. Within 14 days of service on it of the respondents’ costs summary pursuant to order 3, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

5. Within seven days of service of the applicant’s costs response pursuant to order 4, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

6. The determination of the lump-sum costs referred to in order 2 be referred to the Registrar of the Court to whom the determination of the lump-sum costs of the application for leave to appeal has been referred.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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