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)
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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- Case
- [2022] FCA 998
- Decision Date
CaseChat Overview and Summary
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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