Wallace v McMillan Investment Holdings Pty Ltd

Wallace was the applicant seeking leave to appeal a decision of a primary judge concerning costs. McMillan Investment Holdings Pty Ltd was the respondent. The dispute arose after the primary judge dismissed both the statement of claim and cross-claims by consent, making no order for costs in relation to some claims dismissed against Wallace. Wallace sought leave to appeal this costs decision, specifically challenging the absence of costs orders in some claims dismissed against him, while leaving in place one costs order adverse to him and accepting the absence of costs orders for his own cross-claims. The appeal was heard by Leeming and White JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether Wallace had established a sufficient basis for leave to appeal the primary judge's decision to make no order for costs. This involved determining whether the appeal raised any question of principle or involved a substantive injustice, particularly given that a narrower application regarding costs had not been advanced before the primary judge. The court also considered the fact that Wallace was unrepresented for a portion of the proceedings.

Leeming and White JJA reasoned that leave to appeal a costs order is generally only granted in exceptional circumstances, such as where there is a question of principle or a substantive injustice. They noted that Wallace's application for leave was narrower than what could have been sought before the primary judge, and that he had not demonstrated any error in the primary judge's exercise of discretion. The court found that no question of principle or substantive injustice had been established, and therefore, leave to appeal should be refused.

The Summons seeking leave to appeal filed on 6 February 2024 was dismissed with costs. The Notice of motion dated 26 February 2024 and amended on 18 March 2024 was also dismissed with costs.