FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 4) [2012] FCA 116

THE COURT ORDERS THAT:

1.    The application to reopen the costs order made on 3 February 2012 be dismissed.

2.    The matter be listed for directions on 6 March 2012 at 9:30am.

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

REASONS FOR JUDGMENT

1    At the time that I delivered judgment in this matter on 3 February 2012, I ordered that the defendants pay the plaintiff’s costs. This morning the defendants have applied to me to revoke that order and instead to make an order which apportions their liability to costs as between them in a way which is reflective of their participation in the trial. I accept that in the right circumstances it can be both appropriate and useful to seek to apportion costs in that way.

2    The conduct of this case, however, did not involve a simple breakdown between the various claims which were brought. For example, although Mr Riotto was only involved in the circumstances of the McIlwraith loan, a number of the witnesses who were involved in the determination of that issue were also involved in the determination of the positions of the Polimenis, Ms James, Mr Alptekin and Mr Hinds. I have in mind particularly the evidence given by Ms Amphone, Ms Naidoo and Ms Youssef. In those circumstances I do not think that it would be appropriate to seek to separate out the liabilities of the defendants and I therefore decline to vary my earlier order. The earlier order does not in terms say that each of the defendants is jointly and severely liable for the plaintiff’s costs, but it was agreed before me that that is the effect of the order which has been made.

Associate:

Dated:    21 February 2012