Dwyer v Nel

[2021] QCA 165

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Director of company
5. › Whether interests of justice require non-party costs order against sole director who controlled hopeless defence
6. › Civil Proceedings Act 2011 (Qld), s 15
1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Criteria for exercise of discretion
5. › Insolvent party or person of straw
6. › Active part in conduct of litigation
7. › Interest in subject of litigation
8. › Whether criteria are pre-conditions or guides to discretion
1. Appeal
2. › Standard of appellate review
3. › Appeal from exercise of costs discretion
4. › Whether trial judge acted on wrong principle, mistook facts, or failed to take into account material consideration
5. › Re-exercise of discretion by appellate court

Quick Take

A sole director who controls a company's defence of proceedings may be personally liable for non-party costs where the company is a person of straw, the director's involvement goes beyond ordinary directorial conduct, and the director has a sufficient interest in the litigation — even where the company was the defendant rather than the moving party. The 'interest' criterion in Knight v FP Special Assets Ltd does not require an interest equal to or greater than that of the company; a personal interest such as the risk of losing a personal building licence may suffice. The FPM Constructions criteria are guides, not pre-requisites.