Federal Court of Australia

New Aim Pty Ltd v Leung (Costs) [2026] FCAFC 79

ORDERS

THE COURT ORDERS THAT:

1.    The application to vary Order 4 of the orders made on 20 April 2026 be dismissed.

2.    Order 6 made on 20 April 2026 be vacated.

3.    The costs of the proceedings below to date be determined by the primary judge.

4.    The appellant’s costs of the appeal be determined on a lump sum basis, if not agreed.

5.    The appellant file and serve a Costs Summary limited to 5 pages, as contemplated by [4.10] to [4.12] of GPN-COSTS, within 7 days.

6.    The respondents file and serve their Costs Response limited to 4 pages, as contemplated by [4.13] to [4.15] of GPN-COSTS within 7 days after service of the Costs Summary.

7.    The parties file and serve any submissions, limited to 2 pages, within 7 days of the Costs Response.

8.    The costs of the appeal be determined by a Registrar on the papers, with such further order as he or she considers appropriate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 20 April 2026, the Court made orders allowing New Aim’s appeal and making various consequential orders including about costs, but allowing the parties the opportunity to seek a variation to the costs orders: New Aim Pty Ltd v Leung [2026] FCAFC 49. These reasons assume familiarity with the reasons on the appeal and adopt the same abbreviations.

2    The first issue concerns the costs of the appeal. Mr Leung, Sun Yee and Broers – who had common legal representation – seek an order that the costs of the appeal be borne only by Mr Leung on the contended basis that the appeal only concerned the liability of Mr Leung. New Aim contends that the costs order should remain against all three respondents to the appeal and also seeks an order that its costs of the appeal be determined by a Registrar on a lump sum basis.

3    Whilst it is true that the primary focus of the appeal concerned the liability of Mr Leung to New Aim, it was necessary for New Aim to establish that liability to seek to establish liability on the part of Sun Yee and Broers. Sun Yee and Broers were interested in, and actively participated in resisting, the claims against Mr Leung. Further, Sun Yee and Broers contended that the claims against them should not be remitted for determination even if the appeal against Mr Leung was successful. Sun Yee and Broers failed in that contention. Order 4 made on 20 April 2026 should not be disturbed.

4    New Aim’s application for costs to be determined on a lump sum basis was not opposed. Orders will be made for the costs of the appeal to be determined by a Registrar on the papers.

5    The second issue concerns the costs of the proceedings to date, in the Court below, including the costs of the first and second trials. Order 6 of the orders made on 20 April 2026 provided that, subject to certain ‘carve outs’, Mr Leung, Sun Yee and Broers pay New Aim’s costs of the proceeding below to date (including, to the extent applicable, the costs of the first and second trials). Mr Leung, Sun Yee and Broers contend that Order 6 should be varied such that, subject to certain ‘carve outs’:

(a)    Mr Leung be required to pay New Aim’s costs of the first and second trials as concerns the claims against Mr Leung; and

(b)    the costs of the first and second trials referable to New Aim’s claims against Sun Yee and Broers be reserved for determination by the primary judge.

6    In its responding submissions, New Aim accepts that Order 6 ought to be varied, but contends for a different variation. New Aim submits that Mr Leung, Sun Yee and Broers should be jointly and severally liable for New Aim’s costs of the first and second trials as concerns the claims against Mr Leung. New Aim accepts that the costs of the first and second trials referable to New Aim’s claims against Sun Yee and Broers should be reserved for determination by the primary judge.

7    Mr Leung, Sun Yee and Broers correctly observe that New Aim’s claims against Sun Yee and Broers may not succeed. If that were to occur, it might be expected that a costs order would be made in Sun Yee’s and Broers’ favour. If Sun Yee and Broers are unsuccessful, then it might be expected that a costs order would be made against them. Thus, the outcome of New Aim’s claims against Sun Yee and Broers is likely to have a bearing on the appropriate costs orders. In the circumstances, we consider it preferable that the costs of the first and second trials be determined after all the issues have been decided, including any liability on the part of Sun Yee and Broers.

8    For these reasons, Order 6 made on 20 April 2026 should be vacated. The costs of the proceedings to date should be addressed by the primary judge when appropriate. By way of clarification, we note that if Sun Yee and Broers ultimately succeed in defeating the claims against them, it will be because the claims against them fail on grounds other than the liability of Mr Leung not having been established. As they participated in the appeal seeking to defeat the appeal concerning Mr Leung’s liability, it is appropriate that they bear the costs of the appeal notwithstanding that the costs position as concerns the wider case against them is to be determined by the primary judge at a later point.

9    The third issue is whether Mr Leung should be granted an appeal costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The discretion afforded by that provision is a broad one – see: Minister for Immigration and Border Protection v MZZMX (No 2) [2020] FCAFC 214; 385 ALR 283 at [6]; Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated (No 2) [2016] FCAFC 137 at [25].

10    While the statutory prerequisites for the issue of a certificate are satisfied, as the appeal succeeded on a question of law (at least concerning the issue in Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1), no certificate should be granted. The dispute between the parties was commercial in nature. Mr Leung lost on claims of breach of contract, breach of confidence and contravention of s 183 of the Corporations Act 2001 (Cth). On the third aspect of the case, the Full Court found that the meaning of the word “information” in s 183 is not limited to information that would be treated as confidential in equity. Whilst that conclusion may be said to have some wider relevance, we do not consider that sufficient in the overall circumstances of this case to justify granting a costs certificate.

11    Mr Leung submitted that he was an “unwilling participant” in the proceedings. That is hardly a surprising position in which a respondent might find himself, particularly a CCO who used confidential information of his ex-employer to advance the commercial interests of a competitor. Mr Leung also relied on an offer of compromise which would have seen the appeal dismissed with each party paying its own costs. New Aim achieved a substantially better result. Neither of these matters suggest a certificate should be granted.

12    For these reasons, the following orders should be made:

(1)    The application to vary Order 4 of the orders made on 20 April 2026 be dismissed.

(2)    Order 6 made on 20 April 2026 be vacated.

(3)    The costs of the proceedings below to date be determined by the primary judge.

(4)    The appellant’s costs of the appeal be determined on a lump sum basis, if not agreed.

(5)    The appellant file and serve a Costs Summary limited to 5 pages, as contemplated by [4.10] to [4.12] of GPN-COSTS, within 7 days.

(6)    The respondents file and serve their Costs Response limited to 4 pages, as contemplated by [4.13] to [4.15] of GPN-COSTS within 7 days after service of the Costs Summary.

(7)    The parties file and serve any submissions, limited to 2 pages, within 7 days of the Costs Response.

(8)    The costs of the appeal be determined by a Registrar on the papers, with such further order as he or she considers appropriate.

Associate:

Dated:    1 June 2026