PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM

The appeal concerned an application for a non-party costs order against Mr. Peter Mifsud, the sole director and shareholder of PM Works Pty Ltd (the plaintiff), following the dismissal of the plaintiff's proceedings against Management Services Australia Pty Ltd trading as Peak Performance PM (the defendant). The primary judge had refused to make the non-party costs order.

The central legal issues before the Court of Appeal were whether the primary judge erred in refusing the non-party costs order, specifically considering the relevance of Mr. Mifsud's personal animosity towards the defendant, whether it was necessary to establish unreasonableness on Mr. Mifsud's part, and whether exceptional circumstances existed to justify such an order.

The Court of Appeal affirmed the principles governing non-party costs orders, particularly under the *Civil Procedure Act 2005* (NSW). It held that while personal animosity could be a relevant factor, it was not determinative and did not, in itself, establish unreasonableness or exceptional circumstances. The court found that the primary judge had correctly applied the relevant legal principles and had not made any errors in exercising their discretion. The evidence did not demonstrate that Mr. Mifsud's conduct in causing the litigation to be commenced and maintained was so unreasonable or exceptional as to warrant a non-party costs order against him.

Consequently, the appeal was dismissed, with the applicants (Mr. Mifsud and PM Works Pty Ltd) ordered to pay the defendant's costs. Leave to appeal was granted to the extent necessary.