FEDERAL COURT OF AUSTRALIA

Endresz v Australian Securities and Investments Commission (No 3) [2015] FCAFC 74

THE COURT ORDERS THAT:

1.    Subject to order 2, the respondent pay the appellants’ costs of and incidental to each appeal.

2.    There be no order as to costs in respect of the appellants’ applications to adduce fresh evidence.

3.    The parties’ costs to date of and incidental to the proceedings at first instance, including any reserved costs, be their costs in the cause.

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

REASONS FOR JUDGMENT

1    On 19 February 2015 we allowed the appeals in each matter and on 13 March 2015 we published our reasons [2015] FCAFC 33. At that latter time we directed the parties to file submissions on the question of the costs of the appeals and the costs of the proceedings to date before the primary judge.

2    The appellants have contended that they should have their costs of the appeals and the proceedings before the primary judge. They also contend that they should have the costs of their applications to adduce fresh evidence on the appeals.

3    Contrastingly, the respondent (ASIC) contends that no order for costs should be made on the appeals, save that ASIC should be awarded its costs of the appellants’ applications to adduce fresh evidence. As to the costs of the proceedings to date before the primary judge, ASIC contends that they should be reserved to his Honour for further determination.

4    In our opinion, the appellants should have their costs of the appeals. They were successful in establishing that his Honour’s exercise of discretion had miscarried in failing to adjourn each of the petitions before him. True it is that the appellants raised before us other grounds of appeal, but most of them were unnecessary to decide. ASIC has sought to rely upon Stratton v Bowles (No 2) [2015] FCA 43 in support of its contention that no order for costs should be made on the appeals, but in that case no order for costs was made on the appeal because of the way the matter had proceeded at first instance. That case is distinguishable from the present. ASIC has also sought to rely upon authority to the effect that no order for costs is appropriate where a respondent has successfully applied for an adjournment of a creditor’s petition. But in our view, that is a different context. We are here dealing with appeals from what has been found to be a wrongful exercise of discretion at first instance. We otherwise do not comment about the appropriateness of such a practice at first instance, if there be one.

5    As to the appellants’ applications to adduce fresh evidence on the appeals, there should be no order for costs. First, some of that material was relevant to our consideration in the context of re-exercising the discretion to adjourn. Second, little time or attention was devoted by ASIC to addressing those applications. Third, if the primary judge had properly exercised his discretion and granted the adjournment, no such application would have been prompted. Fourth, in the result, it became unnecessary to deal with the applications. In all the circumstances, and even though we would have refused the applications had it been necessary to do so, we consider that costs should lie where they fall.

6    Finally, as to the costs to date of the proceedings at first instance, we consider it more appropriate that we order that those costs be the parties’ costs in the cause rather than to trouble the primary judge further with their determination. If his Honour had adjourned the petitions before him, that in effect would have been the costs position that would have applied in any event.

7    We will order accordingly.

Associate:

Dated: 28 May 2015

Schedule of Parties

Federal Court of Australia

District Registry: Victoria

Division: General

VID 483 of 2014

Appellant:    DAWN MAY ENDRESZ

Respondent:    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 484 of 2014

Appellant:    JOZSEF ENDRESZ

Respondent:    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 485 of 2014

Appellant:    WILLIAM ARTHUR FORGE

Respondent:    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 486 of 2014

Appellant:    ALLAN PAUL ENDRESZ

Respondent:    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION