Wallace v McMillan Investment Holdings Pty Ltd [2024] NSWCA 106

Wallace v McMillan Investment Holdings Pty Ltd [2024] NSWCA 106

Leave to appeal was refused because the primary judge applied the correct costs rule and exercised a broad discretion open on the facts; no question of general public importance or error beyond the merely arguable was shown. Mr Wallace sought a narrower costs order than had been advanced below while retaining the benefit of no adverse costs order on his own dismissed cross-claims, and he failed to establish that the costs at stake were substantial. The security for costs motion was dismissed because the application for leave was dismissed and the claimed security amount was grossly excessive.

Jurisdiction
Australia
Judgment Date
09 May 2024
Procedural Posture
Application for Leave to Appeal Concerning Costs; Notice of Motion for Security for Costs / Court of Appeal Determination of Summons Seeking Leave to Appeal and Notice of Motion
Outcome
Summons seeking leave to appeal dismissed with costs; notice of motion dismissed with costs.
Legal Topics
['leave to Appeal From Costs Order' 'dismissal of Proceedings by Consent' 'ucpr R 42.20' 'security for Costs' 'costs Discretion']
['civil Procedure' 'costs'] ['leave to Appeal From Costs Order' 'dismissal of Proceedings by Consent' 'ucpr R 42.20' 'security for Costs' 'costs Discretion']

Case Brief

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Procedural Posture

Application for Leave to Appeal Concerning Costs; Notice of Motion for Security for Costs / Court of Appeal Determination of Summons Seeking Leave to Appeal and Notice of Motion

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the primary judge's order making no order as to costs in respect of parts of the statement of claim and the third cross-claim dismissed against Mr Wallace." 'Whether the settlement between McMillan and the solicitors was a sufficient supervening event or sound positive ground to depart from the ordinary costs position under r 42.20(1) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether any question of principle, general public importance, or substantive injustice was established sufficient to warrant leave to appeal on costs.' "Whether the respondents' notice of motion for security for costs in the sum of $335,000 should be maintained."]

Ratio Decidendi

Leave to appeal was refused because the primary judge applied the correct costs rule and exercised a broad discretion open on the facts; no question of general public importance or error beyond the merely arguable was shown. Mr Wallace sought a narrower costs order than had been advanced below while retaining the benefit of no adverse costs order on his own dismissed cross-claims, and he failed to establish that the costs at stake were substantial. The security for costs motion was dismissed because the application for leave was dismissed and the claimed security amount was grossly excessive.

Court Disposition

Summons seeking leave to appeal dismissed with costs; notice of motion dismissed with costs.

Orders

  • ['Summons seeking leave to appeal filed 6 February 2024 dismissed with costs.' 'Notice of motion dated 26 February 2024 and amended on 18 March 2024 dismissed with costs.']