Puxty v Monarch Advisory Group Pty Ltd (Costs)

FEDERAL COURT OF AUSTRALIA

Puxty v Monarch Advisory Group Pty Ltd (Costs) [2023] FCA 650

File number(s):

NSD 779 of 2021

Judgment of:

THAWLEY J

Date of judgment:

19 May 2023

Catchwords:

COSTS – application for indemnity costs – where respondent went to lengths to explain why grounds of appeal were misconceived – where costs of proceeding were significantly increased by a lack of attention given to the basis for the application – indemnity costs awarded   

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43

Cases cited:

Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225

Monarch Advisory Group Pty Ltd v Puxty (No 2) [2021] FCA 801

Puxty v Monarch Advisory Group Pty Ltd [2022] FCA 153

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

14

Date of last submission/s:

8 March 2022

Date of hearing:

Determined on the papers

Solicitor for the Applicant:

Edge Legal Group

Solicitor for the Respondent:

Madison Marcus Law Firm Pty Ltd

ORDERS

NSD 779 of 2021

BETWEEN:

BRETT JAMES PUXTY

Applicant

AND:

MONARCH ADVISORY GROUP PTY LTD

Respondent

ORDER MADE BY:	THAWLEY JJ
DATE OF ORDER:	19 MAY 2023

THE COURT ORDERS THAT:

1.The applicant pay the respondent’s costs of the application for an extension of time and leave to appeal:

(a)on the party and party basis up to and including 15 September 2021; and

(b)on the indemnity basis from 16 September 2021.

2.The applicant pay the respondent’s costs of this costs application.

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

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1. On 25 February 2022, the Court refused to grant Mr Brett James Puxty leave to appeal from orders made by the primary judge on 16 July 2021: Puxty v Monarch Advisory Group Pty Ltd [2022] FCA 153. The Court made an order that Mr Puxty pay the respondent’s costs unless either party applied for a different order as to costs within 7 days of the date of the order. The respondent, Monarch Advisory Group Pty Ltd, applied for an order that the costs be paid on an indemnity basis, but did not specify the date from which any such order should operate. The parties agreed orders for the exchange of submissions and for the question to be determined on the papers. Both parties filed submissions and Monarch filed two affidavits sworn by its solicitor with exhibits containing correspondence between the parties. The issue would have been determined earlier were it not for administrative oversight and the lack of any inquiry from the parties.

2. The decision the subject of Mr Puxty’s application for an extension of time and leave to appeal was an interlocutory decision made by the primary judge, dismissing an application made by Mr Puxty (and others) for an order “removing and or barring” Madison Marcus Law Firm Pty Ltd, from acting for Monarch…