Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

The applicant's (MTGI) proceeding was instituted without reasonable cause as it had no real prospects of success from inception, was unduly prolonged by groundless contentions, and the applicant unreasonably refused a reasonable settlement offer. The Court exercises its discretion under s 570(2)(a) and (b) Fair Work Act 2009 (Cth) and s 43 Federal Court of Australia Act 1976 (Cth), awarding indemnity costs against both MTGI and its sole director Mr Wallace personally, given his active involvement and the company's lack of assets. Lump sum indemnity costs are fixed in the amount claimed.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Costs Application / Post Judgment (following Dismissal of Application for Review)
Outcome
Application for costs granted; indemnity costs ordered against both applicant and non-party director.
Legal Topics
['costs' 'indemnity Costs' 'non Party Costs' 'fair Work Act' 'calderbank Offers']
['employment & Industrial Relations' 'civil Procedure'] ['costs' 'indemnity Costs' 'non Party Costs' 'fair Work Act' 'calderbank Offers']

Case Brief

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Procedural Posture

Costs Application / Post Judgment (following Dismissal of Application for Review)

Legal Issues

  1. 1 ['Whether applicant instituted proceedings without reasonable cause under s 570(2)(a) Fair Work Act 2009 (Cth)' "Whether applicant's unreasonable omission (to accept Calderbank offer) caused respondent to incur costs under s 570(2)(b) Fair Work Act 2009 (Cth)" 'Whether indemnity costs should be awarded against applicant and non-party director' 'Whether lump sum costs are appropriate']

Ratio Decidendi

The applicant's (MTGI) proceeding was instituted without reasonable cause as it had no real prospects of success from inception, was unduly prolonged by groundless contentions, and the applicant unreasonably refused a reasonable settlement offer. The Court exercises its discretion under s 570(2)(a) and (b) Fair Work Act 2009 (Cth) and s 43 Federal Court of Australia Act 1976 (Cth), awarding indemnity costs against both MTGI and its sole director Mr Wallace personally, given his active involvement and the company's lack of assets. Lump sum indemnity costs are fixed in the amount claimed.

Court Disposition

Application for costs granted; indemnity costs ordered against both applicant and non-party director.

Orders

  • ['The Trustee for MTGI Trust T/A Macquarie Technology Group International and Mr Paul Desmond Wallace be jointly and severally liable for the costs of Mr David Johnston of and incidental to the proceedings.' 'The costs referred to in paragraph 1 are fixed in the sum of $48,387.18; to be paid to Mr David Johnston...