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
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
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.
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…
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- Case
- [2023] FCA 650
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court needed to resolve was whether the applicant’s appeal was so devoid of merit that it warranted an award of indemnity costs. The court considered the extent to which the respondent had to go in order to demonstrate the lack of merit in the appeal, and the extent to which the appeal itself had increased the costs of the proceedings due to a lack of attention to the basis for the application.
In its reasoning, the court noted that the respondent had gone to considerable lengths to explain why the grounds of appeal were misconceived. The respondent's efforts included detailed submissions that illustrated the lack of merit in the appeal, which the court acknowledged. The court found that the costs of the proceedings were significantly increased by the applicant’s lack of attention to the basis for the application, which resulted in the need for extensive rebuttal by the respondent. The court concluded that the applicant’s appeal was so lacking in merit that it warranted an award of indemnity costs.
Consequently, the court ordered that the applicant pay the respondent’s costs of the application for an extension of time and leave to appeal on a party and party basis up to and including 15 September 2021, and on the indemnity basis from 16 September 2021. Furthermore, the applicant was ordered to pay the respondent’s costs of the costs application.
Orders
Orders of the court
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.
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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