Gilmore Finance Pty Ltd v Aesthete Pty Ltd (No 2) [2023] NSWCA 31

Gilmore Finance Pty Ltd v Aesthete Pty Ltd (No 2) [2023] NSWCA 31

Because there was no possibility of conflict between the trustees and their owner and controller on the one hand and the unitholders who also opposed removal of the trustees on the other, the fourth and fifth respondents could have adopted the same representation or a limited appearance without generating a second...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Costs / Costs Determination After Dismissal of Appeal and Summons Seeking Leave to Appeal
Outcome
The applicant was ordered to pay the first to third respondents' costs in the agreed fixed amount; no order was made for the fourth and fifth respondents' costs, and they were ordered to pay the applicant's costs of their costs application.
Legal Topics
['costs Following the Event' 'separately Represented Successful Respondents' 'multiple Sets of Costs' 'no Conflict of Interest Between Respondents']
['civil Procedure' 'costs'] ['costs Following the Event' 'separately Represented Successful Respondents' 'multiple Sets of Costs' 'no Conflict of Interest Between Respondents']

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Summary, issues, holding and outcome

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Procedural Posture

Costs / Costs Determination After Dismissal of Appeal and Summons Seeking Leave to Appeal

Legal Issues

  1. 1 ['Whether the unsuccessful applicant should pay a second set of costs for the separately represented fourth and fifth respondents where there was no conflict or likely possibility of conflict with the first to third respondents.' "Whether the fourth and fifth respondents should pay the applicant's costs of their application for costs in this Court."]

Ratio Decidendi

Because there was no possibility of conflict between the trustees and their owner and controller on the one hand and the unitholders who also opposed removal of the trustees on the other, the fourth and fifth respondents could have adopted the same representation or a limited appearance without generating a second set of costs. It was therefore not reasonable for the unsuccessful applicant to bear two sets of costs, and there was no reason to depart from the general principle in Statham v Shephard (No 2).

Court Disposition

The applicant was ordered to pay the first to third respondents' costs in the agreed fixed amount; no order was made for the fourth and fifth respondents' costs, and they were ordered to pay the applicant's costs of their costs application.

Orders

  • ["By consent, the applicant is to pay the first to third respondents' costs of the Notice of Appeal filed 10 August 2022 and Summons seeking leave to appeal filed 9 September 2022 in the fixed amount of $127,000." 'Subject to 3 below, no order as to the costs in this Court of the fourth and fifth respondents, with...