FEDERAL COURT OF AUSTRALIA

Fraser v Australian Securities & Investments Commission, In the Matter

of Lanepoint Enterprises Pty Ltd (Receivers And Managers Appointed)

[2007] FCAFC 208

IN THE MATTER OF LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (aCn 110 693 251)

SHAUN ROBERT FRASER AND JOHN PATRICK CRONIN v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION and LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (ACN 110 693 251)

WAD 345 OF 2006

AND

IN THE MATTER OF bowesco PTY LTD (Receivers and Managers Appointed) (aCn 008 915 357)

SHAUN ROBERT FRASER and JOHN PATRICK CRONIN as Receivers and Managers of LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (ACN 111 693 251) and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION and BOWESCO PTY LTD (Receivers and Managers Appointed) (ACN 008 915 357)

WAD 358 OF 2006

RYAN, FINKELSTEIN & GILMOUR JJ

21 DECEMBER 2007

PERTH (HEARD IN MELBOURNE) 

IN THE MATTER OF LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (aCn 110 693 251)

THE COURT ORDERS THAT:

1.         The second respondent pay the appellants’ costs of the proceedings before French J and their costs of the written submissions as to costs filed on 19 June 2007, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF bowesco PTY LTD (Receivers and Managers Appointed) (aCn 008 915 357)

THE COURT ORDERS THAT:

1.         The second respondent pay the appellants’ costs of the proceedings before French J and their costs of the written submissions as to costs filed on 19 June 2007, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (aCn 110 693 251)

IN THE MATTER OF bowesco PTY LTD (Receivers and Managers Appointed) (aCn 008 915 357)

REASONS FOR JUDGMENT

RYAN AND GILMOUR JJ

1                     When substantive orders were made in this matter on 8 June 2007, it was the unanimous view of the Court that the costs of all parties of the appeals and the proceedings below should lie where they fall.  After it was later pointed out on behalf of the appellants that no opportunity to be heard on the question of costs had been afforded to the parties, Ryan J, on 12 June 2007, made the following orders:

‘1.        The appellants file and serve within 7 days of this day, any written submissions as to the orders for costs which they contend should be made in consequence of the reasons of the Court published on 8 June 2007.

2.         That the respondents file and serve within 21 days of this day any written submissions on which they wish to rely in answer to the submissions referred to in paragraph 1 of this Order.

3.         The appeal stand over to a date to be fixed for the making of orders (if any) as to the costs of the appeal.’

2                     Pursuant to the opportunity afforded by that order, written submissions were filed on behalf of the appellants contending that the second respondent should pay the appellants’ costs of the proceedings before French J and before Siopis J and of the appeal from Siopis J.  In the course of those submissions, Counsel for the appellants acknowledged a body of authority to the effect that where an appellant succeeds on grounds which were not taken or were insufficiently developed at first instance, it will generally be a proper exercise of the appellate court’s discretion as to costs to make no order as to the costs of the appeal.  However, an exercise of discretion in that way, it was said, does not entail that the successful appellant should be deprived of the costs of the proceedings below.

3                     It was further contended on behalf of the appellants that there had, on their side, been no lack of assistance to Siopis J.  It was, therefore, said to follow that they should have their costs of both the proceedings before his Honour and of the appeal from his orders. 

4                     Like Finkelstein J, we have been persuaded that the appellants should have their costs of the proceedings before French J.  However, as indicated in our earlier reasons of 8 June 2007, we consider that there should be no other order as to costs.  The appellants should have their costs of the written submissions as to costs filed on 19 June 2007.

Associate:

Dated:         21 December 2007

IN THE MATTER OF LANEPOINT ENTERPRISES PTY LTD (Receivers and Managers Appointed) (aCn 110 693 251)

REASONS FOR JUDGMENT

FINKELSTEIN J:

5                     On further reflection it is, I think, appropriate for the appellant to have its costs of the proceeding before French J.  The application was doomed to failure.  If it had been properly argued at trial the judge would have dismissed the application with costs.  That it required an appeal court to dismiss the application should not deprive the appellant of its entitlement to the costs below.

6                     On the other hand, the costs of the proceeding before Siopis J cannot be disposed of so simply.  On the assumption that the case had been properly argued before French J and the application dismissed by him, there would have been no application before Siopis J.  I think therefore that the only fair order is for the costs of that proceeding to lie where they fall. 

Associate:

Dated:         21 December 2007