Findex Group Ltd v McKay (No 3) [2020] FCA 259

Findex Group Ltd v McKay (No 3) [2020] FCA 259

The applicants' and the first respondent's applications to vary the preliminary costs order are dismissed. The ordinary rule that costs follow the event applies; respondent was successful, and applicants failed to demonstrate grounds for departure. The rejection of the offer of compromise by the applicants was not unreasonable in the context of the early stage of proceedings and the limited concession entailed in the offer; accordingly, indemnity costs are not awarded.

Parties
First Applicant: Findex Australia Pty Ltd (ACN 128 588 714); Second Applicant: Civic Financial Planning Ltd (ACN 143 253 767); Third Applicant: Findex Services Pty Ltd (ACN 128 588 705); Fourth Applicant: Financial Index Australia Pty Ltd (ACN 094 287 037); First Respondent: David Keith McKay; Second Respondent: Vandaman Pty Ltd (ACN 103 917 773)
Jurisdiction
Australia
Judgment Date
05 March 2020
Procedural Posture
Commercial and Corporations / Post Judgment (costs)
Outcome
Applications to vary costs order dismissed. Preliminary costs order confirmed.
Legal Topics
Order for Costs, Indemnity Costs, Offer of Compromise, Restraint of Trade, Shareholders Agreements
Costs Commercial Law Order for Costs Indemnity Costs Offer of Compromise Restraint of Trade Shareholders Agreements

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Parties

Findex Australia Pty Ltd (ACN 128 588 714)

First Applicant

Civic Financial Planning Ltd (ACN 143 253 767)

Second Applicant

Findex Services Pty Ltd (ACN 128 588 705)

Third Applicant

Financial Index Australia Pty Ltd (ACN 094 287 037)

Fourth Applicant

David Keith McKay

First Respondent

Vandaman Pty Ltd (ACN 103 917 773)

Second Respondent

Procedural Posture

Commercial and Corporations / Post Judgment (costs)

Legal Issues

  1. 1 Should the preliminary costs order be varied so applicants are not ordered to pay respondent's costs?
  2. 2 Should indemnity costs be awarded to respondent due to rejection of offer of compromise?

Ratio Decidendi

The applicants' and the first respondent's applications to vary the preliminary costs order are dismissed. The ordinary rule that costs follow the event applies; respondent was successful, and applicants failed to demonstrate grounds for departure. The rejection of the offer of compromise by the applicants was not unreasonable in the context of the early stage of proceedings and the limited concession entailed in the offer; accordingly, indemnity costs are not awarded.

Court Disposition

Applications to vary costs order dismissed. Preliminary costs order confirmed.

Orders

  • The applicants' and the first respondent's applications to vary Order 2 made on 18 December 2019 are dismissed.
  • Order 2 made on 18 December 2019 is confirmed and made final.