Federal Court of Australia

Australian Securities and Investments Commission v NGS Crypto Pty Ltd (No 6) [2026] FCA 193

ORDERS

THE COURT ORDERS THAT:

1.    The second defendant pay the plaintiff’s costs of the proceedings as against the second defendant.

2.    The fifth defendant pay the plaintiff’s costs of the application made by the third and fifth defendants by interlocutory application dated 27 May 2024.

3.    Costs as they otherwise relate to the plaintiff and the fourth, fifth and sixth defendants are reserved pending the discharge of the receivers appointed by paragraph 6 of the orders of Justice Meagher made on 10 April 2024 and paragraph 6 of Annexure A to the orders of Justice Derrington made on 30 April 2024 (receivers).

4.    The plaintiff notify the chambers of Justice Collier within 14 days of the discharge of the receivers, as to whether it seeks costs against the fourth, fifth and sixth defendants.

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

REASONS FOR JUDGMENT

COLLIER J:

1    On 18 December 2025 I delivered judgment in Australian Securities and Investments Commission v NGS Crypto Pty Ltd (No 5) [2025] FCA 1611. Materially for present purposes, included in those orders were the following:

17.    With respect to the First and Third Defendants, there be no order as to costs.

18.    Costs in respect of the Second, Fourth, Fifth and Sixth Defendants be reserved.

19.    By 4pm on 30 January 2026, the Plaintiff file and serve any material and submissions on which it relies on the issue of costs, such submissions to be of no more than 10 pages in length, with respect to the Second, Fourth, Fifth and Sixth Defendants.

20.    In the event that the Plaintiff files any material and submissions referable to paragraph 19 of these Orders, the matter be listed for further case management in respect of the issue of costs at a date to be fixed.

2    The plaintiff, Australian Securities and Investments Commission (ASIC), filed submissions in respect of costs with respect to the second, fourth, fifth and sixth defendants in accordance with those orders.

3    Subsequently, I listed a case management hearing to take place on 26 February 2026 pursuant to Order 20 above. On 25 February 2026, however my chambers received an email from the lawyers for ASIC in the following terms:

We refer to the above matter and the case management hearing presently listed for 26 February 2025 at 9am.

With respect to the submissions and proposed orders as to the matter of costs filed by ASIC:

1.    the second and sixth defendants have confirmed they do not intend to make any submissions on costs and do not object to the orders sought by ASIC by its submissions filed 6 February 2026.

2.    the fourth defendant has agreed to the reservation of the question of costs as it concerns him; and

3.    the fifth defendant has consented to ASIC’s position on costs and does not intend to file any submissions in response or to otherwise oppose the costs orders sought by ASIC.

Given the above, ASIC respectfully requests whether her Honour may be minded to vacate the case management hearing and make the attached orders giving effect to the orders sought by ASIC on the issue of costs on the papers.

We confirm the parties have been provided with a copy of this correspondence prior to its being sent. The sixth defendant has consented to this email and the attached orders being sent. The first and fourth defendants have consented to this email being sent.

(emphasis in original)

4    In short – the only remaining issue for consideration in this matter concerns the award of costs.

5    Section 43 of the Federal Court of Australia Act 1976 (Cth) relevantly provides:

(1)     The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded….

…

(2)    Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

…

6    As a general proposition, the Courts have ruled that a successful party is entitled to its costs of and incidental to a proceeding: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43.

Second defendant

7    In the present case, in respect of the second defendant it is uncontroversial that:

(1)    The second defendant defended the proceeding against it commenced by ASIC until 12 August 2024 when it was placed in liquidation;

(2)    ASIC was granted leave by order made on 9 September 2024 to continue proceedings against the second defendant, but on the basis that ASIC would not enforce any order for costs against the second defendant without the leave of the Court;

(3)    The second defendant did not thereafter participate in the proceedings;

(4)    By paragraph 25 of the Amended Originating process filed on 29 November 2024, ASIC specifically sought against the second defendant:

25.    An order pursuant to sections 1101B and/or 1324 of the Corporations Act, that the Second Defendant either, by itself, or by its officers, servants, agents, representatives or employees is permanently restrained and an injunction is granted restraining it from:

(a)    arranging the issue or acquisition of the Blockchain Mining Product;

(b)     arranging the issue or the acquisition of an interest in the NGS Digital Mining Scheme;

(c)     dealing with Investor Funds;

(d)     doing any act in furtherance of or in connection with the promotion in Australia of the Blockchain Mining Product or the NGS Digital Mining Scheme;

(e)     providing any financial product advice, including, without limitation, opinions or recommendations or reports of either of those things relating to the Blockchain Mining Product, the NGS Digital Mining Scheme or beneficial interests in a SMSF;

(f)     otherwise carrying on a financial services business in Australia, within the meaning of Chapter 7 of the Corporations Act;

(g)     providing any financial service on behalf of a person who carries on a financial services business.

(5)    Order 9 of the Orders of 18 December 2024 in these proceedings gave effect to paragraph 25 of ASIC’s Amended Originating process, in ASIC’s favour.

8    It follows that ASIC was successful in its case against the second defendant. No reason has been provided to the Court why ASIC’s costs of the proceedings in respect of the second defendant should not be awarded against the second defendant. It is appropriate to make an order in such terms.

Third and fifth defendants

9    In respect of the third and fifth defendants, freezing orders were made on 10 April 2024 by Meagher J, and subsequently varied on 30 April 2024 by Derrington J. They relevantly provided for:

    the appointment of joint and several receivers and/or receivers’ managers over Digital Currency Assets held or controlled by the defendants;

    delivery up to the receiver of all books, records and things relating to the Digital Currency Assets;

    restraint on the defendants from, inter alia, dealing with any or all of the Digital Currency Assets; and

    delivery up to ASIC or the Receiver of a full and detailed affidavit deposing as to (in summary) locations of Digital Currency Assets.

10    By an interlocutory application filed on 27 May 2024 the third and fifth defendants relevantly sought the following orders:

Rescinding or discharging the orders made on 10 April 2024, and varied on 30 April 2024

1.    Pursuant to the general jurisdiction of this Honourable Court to control its own processes rescind and fully discharge the orders made by the Court on 10 April 2024, and varied on 30 April 2024 (Freezing Orders).

2.    Further or alternatively, pursuant to section 1101B(11) of the Corporations Act, the Freezing Orders be rescinded.

3.    Further or alternatively, pursuant to section 1323(5) of the Corporations Act, the Freezing Orders be discharged.

4.    With effect from 6:00am on 12 June 2024, the appointment of the jointly and severally receivers and/or receiver managers, Anthony Norman Connelly, Katherine Sozou and William James Harris of McGrath Nicol, Level 15, 175 Eagle Street, Brisbane in the State of Queensland (Receivers) cease.

5.     Within 7 days of the date of this order, the Receivers deliver up to each relevant Defendant all material, documents, devices and information provided by any Defendant under orders 9, 13, 14, 16 and 17 of the Freezing Orders and do all such things necessary to ensure that no information provided by any Defendant is retained by the Receivers or the Plaintiff.

6.    To the extent necessary, the Plaintiff give a copy of the authenticated orders made this day to a person apparently in the employ of:

(a)    any bank, building society, cryptocurrency exchange, or other financial institution through which, to the best of the Plaintiff’s belief, Digital Currency Assets belonged to the Defendants;

(b)    any other person or entity, holding or controlling Digital Currency Assets, which, to the best of the Plaintiff’s belief, belonged to the Defendants;

(c)    the relevant authorities that issue and control passports;

(d)    the Australian Border Force; and

(e)     the Receiver.

7.    The costs and expenses of the Receivers be paid by ASIC.

Variation of the orders made by the Court on 10 April 2024, and varied on 30 April 2024

8.    Alternatively, the Orders made on 10 April 2024, as varied on 30 April 2024 be further varied under section 1101B(11) of the Corporations Act 2001 (Cth) and/or section 1323(5) of the Corporations Act as set out in paragraphs 9 to 20 below.

…

20.    Alternatively, if the orders sought 8 to 18 are made (varying the interim Freezing Orders), the plaintiff pay the costs of and incidental to the application.

11    Paragraphs 9 to 20 of the interlocutory application sought variation of the definitions of “Australian Member”, “Business”, “Digital Currency”, “Digital Currency Assets”, and “Investor Funds”, and the insertion of alternative restraining and other orders.

12    I heard this interlocutory application on 12 June 2024 in respect of paragraphs 1-7. I delivered judgment in Australian Securities and Investments Commission v NGS Crypto Pty Ltd (No 3) [2024] FCA 822 on 25 July 2024, making the following orders:

1.     The interlocutory orders sought in paragraphs 1, 2, 3, 4, 5 and 6 of the interlocutory application filed on 27 May 2024 be refused.

2.     Costs be reserved.

13    The third and fifth defendants subsequently did not press the balance of the interlocutory application. On 6 August I made, insofar as relevant, the following orders:

Definitions

…

"Variation Application" means paragraphs 8 to 20 of the interlocutory application filed by the Third and Fifth Defendants on 23 May 2024.

…

UPON THE FIRST TO THIRD DEFENDANTS, BY THEIR COUNSEL, UNDERTAKING TO THE COURT IN THE TERMS SET OUT IN SCHEDULE 2, THE COURT ORDERS BY CONSENT THAT:

Variation Application

1. The Variation Application be dismissed.

2. Costs of the Variation Application be reserved.

14    In summary, it follows that ASIC was wholly successful in respect of the interlocutory application filed by the third and fifth defendants. No reason has been submitted to the Court why ASIC’s costs of the interlocutory application should not be awarded against the third and fifth defendants. It is appropriate to make an order in such terms.

Fourth, Fifth and Sixth defendants

15    By paragraphs 16 to 20 of the Amended Originating process filed 29 November 2024, ASIC sought travel restraints against the fourth defendant in the following terms:

Travel restraint orders

16.    An order pursuant to section 1323(1)(k) of the Corporations Act that, until further order, the Fourth Defendant be prohibited from leaving Australia or attempting to leave Australia.

17.     An order pursuant to section 1323(1)(j) of the Corporations Act that, by a time fixed by the Court, the Fourth Defendant deliver up to the Brisbane Registry of this Court all passports in his name which are in his possession, custody or control.

18.     An order that the documents delivered up to the Brisbane Registry pursuant to paragraph 17 above be held by the Registry until further order.

19.     An order that, until further order, the Fourth Defendant be restrained from applying for the issue of an Australian or non-Australian passport or other document permitting international travel.

20.     An order that, in the event that the Fourth Defendant cannot locate any passport or other document permitting international travel, the Fourth Defendant promptly:

(a)    give notification to the Australian Passport Office, or other relevant authorities for the issue and control of Australian passports or travel documents, or, in the case of a foreign passport or travel document, the relevant authority responsible for the issue and control of such passports or travel documents, confirming that he has lost his passport or travel document; and

(b)     file and serve an application stating that fact and exhibiting a copy of the above notification sent.

16    Further, by paragraphs 11, 12, 14 of the Amended Originating process filed 29 November 2024 ASIC sought relief against all defendants, including the fourth, fifth and sixth defendants pursuant to, inter alia, s 1323 of the Corporations Act 2001 (Cth) to restrain them from dealing with Digital Currency Assets, and to require disclosure and delivery of locations of all Digital Currency Assets.

17    In written submissions ASIC said, in summary:

    The fourth defendant is subject to travel restraint orders made on 10 April 2024, as later varied by orders of 30 April 2024 and 18 December 2025. As matters currently stand, the travel restraint to which the fourth defendant is subject expires on 31 March 2026, subject to any further order (Order 16 of 18 December 2025).

    Orders against the defendants preserving relevant assets, and appointing receivers, made by Meagher and Derrington JJ, continue to be in effect.

    It is appropriate to delay final determination of costs in respect of proceedings pursuant to s 1323 of the Corporations Act against the fourth, fifth and sixth defendants until termination of the appointment of the receivers and the associated disposition of the Digital Currency Assets held by them.

18    I do not consider it ideal to continue to prolong finalisation of these proceedings, including in respect of costs. However, I understand that the appointment of the receivers continues. I also note that the fourth respondent does not oppose delaying final determination of costs in this respect. In the circumstances, on balance, I am prepared to continue to reserve costs otherwise relating to the proceedings concerning the fourth, fifth and sixth defendants. It is appropriate, however, that the plaintiff, ASIC, be required to notify chambers expeditiously once the receivers are discharged, and inform the Court as to whether it will press costs against the fourth, fifth and sixth defendants.

19    I will make orders accordingly.

Associate:

Dated:    3 March 2026

SCHEDULE OF PARTIES