Federal Court of Australia

The Owners – Strata Plan No 17415 v Australian Securities and Investments Commission [2026] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 6 of the orders dated 19 December 2025 be set aside.

2.    Gravitar Pty Ltd (ACN 166 130 883) (Gravitar) pay the plaintiff’s costs and disbursements to be reimbursed in accordance with s 466(2) of the Corporations Act 2001 (Cth).

3.    Gravitar pay the plaintiff’s costs of the review application.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

MCEVOY J:

1    By an originating process dated 20 June 2025 the plaintiff, The Owners - Strata Plan No 17415, sought orders against the Australian Securities and Investments Commission (ASIC) for the reinstatement to the register of companies of Gravitar Pty Ltd (ACN 166 130 883) (the Company) pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (the Act) and then, upon reinstatement, that the Company be wound up on just and equitable grounds pursuant to s 461(1)(k) of the Act. The plaintiff also sought its costs, including reserved costs, if any, to be taxed and reimbursed out of the property of the corporation in accordance with s 466(2) of the Act.

2    The plaintiff apparently took this action in pursuit of unpaid levies, interest and expenses owed by the Company, which was the owner of one of its lots. The plaintiff asserted that notices had been sent to former directors and to the Company prior to the issue of the proceedings, but no response had been received.

3    At the time that the originating process was filed, the plaintiff submits that the Company owed a debt of $8,835.95 to the plaintiff. On 6 August 2025 and 17 September 2025, the court adjourned the hearing of the proceeding to enable a former director of the Company, Ms Annalisa O’Sullivan-Fox (hereafter referred to as Ms Fox), to apply for the re-registration of the Company and to repay the debt to the plaintiff.

4    It would seem that on 10 October 2025, Ms Fox appeared before the Registrar for the further hearing of the proceeding and at that time provided a receipt for payment in the amount of $7,063.00 dated 10 October 2025. This payment was subsequently received into the plaintiff's bank account. The plaintiff submits, and it would seem to be the case, that the amount paid was the exact figure of the short form bill of costs that the plaintiff had submitted to the court on 9 October 2025 and which had also been sent to Ms Fox. This may be where some confusion has arisen. In any event, the plaintiff submits that at this hearing Ms Fox advised that the payment of 10 October 2025 was intended to pay the debt owed to the plaintiff and that she, Ms Fox, had been mistaken as to what the $7,063.00 figure represented. The plaintiff’s solicitor, Ms Megan Lee Boot, deposes to this statement by Ms Fox in an affidavit Ms Boot affirmed on 30 January 2026, and this is consistent with what is recorded in the transcript of the hearing before the Registrar on 10 October 2025.

5    The hearing before the Registrar was adjourned on 10 October 2025 and again on 21 November 2025. The Registrar noted that the hearings were adjourned to enable repayment of the debt owed to the plaintiff, for the plaintiff to consider a payment proposal submitted by Ms Fox, and so that ASIC could determine the application for re-registration of the Company.

6    On 19 December 2025, the Registrar made final orders including that pursuant to s 601AH(2) of the Act that the Company be reinstated to the register of companies by ASIC, that upon reinstatement the Company be wound up on the grounds that it is just and equitable pursuant to s 461(1)(k) of the Act, that a liquidator be appointed, and that there be no order as to costs.

7    The plaintiff submits that the Registrar declined to make an order for costs in favour of the plaintiff on the basis that she understood the costs to have been paid. No notation to this effect was included in the final orders made by the Registrar. Ms Boot’s 30 January 2026 affidavit contends that the Registrar had explained that she was not satisfied as to whether the payment of $7,063.00 by Ms Fox had gone toward costs or the repayment of the debt itself, and I accept that this is consistent with the transcript of the hearing on 19 December 2025 and the Registrar’s ruling.

8    By an interlocutory application dated 30 January 2026 the plaintiff seeks to have the Registrar’s orders “amended”, “striking out” the Registrar’s “no order as to costs” order, and, in lieu thereof, an order that the Company “pay the plaintiff’s costs and disbursements … in accordance with s 466(2) of the [Act]”.

9    It would seem that what the plaintiff actually seeks is a review of the Registrar’s decision pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which of course the plaintiff is entitled to have. Such a review proceeds by way of a hearing de novo.

10    In support of the review application, the plaintiff relies upon:

(a)    the affidavit of Renae Barnett affirmed on 20 June 2025;

(b)    the affidavit of Megan Lee Boot affirmed on 30 January 2026;

(c)    two affidavits of Stephen Ecob each affirmed on 9 April 2026;

(d)    written submissions dated 27 April 2026; and

(e)    two affidavits of Stephen Ecob each affirmed on 3 June 2026.

11    On 10 April 2026 I made orders that the plaintiff serve a sealed copy of its interlocutory application and any affidavits in support of the interlocutory application, as well as the plaintiff’s written outline of submissions, on ASIC, Ms Fox and Mr Joshua Phillip Taylor, the liquidator of the Company. Affidavits of service confirming compliance with these orders were filed by the plaintiff on 27 April 2026.

12    At the hearing of the proceeding on 3 June 2026, Ms Fox indicated that she had not received this material and that she opposed the plaintiff’s review application. That hearing was adjourned, effectively by consent, to enable Ms Fox to acquire and review a transcript of the hearing before the Registrar on 19 December 2025 and to file any written submissions in respect of the review application.

13    On 5 June 2026 I made orders providing that, among other things:

(a)    the application be adjourned until today, 13 July 2026;

(b)    on or before 19 June 2026 Ms Fox was to provide to the plaintiff a copy of the transcript of the 19 December 2025 hearing before the Registrar and any other transcripts of hearings conducted by the Registrar in this proceeding on which she sought to rely;

(c)    on or before 24 June 2026 Ms Fox was to file and serve any affidavit and any outline of submissions on which she sought to rely;

(d)    on or before 1 July 2026 the parties were to file and serve any further affidavit material on which they sought to rely; and

(e)    on or before 8 July 2026, the plaintiff was to file and serve any submissions in reply on which it sought to rely.

14    At the resumed hearing today, 13 July 2026, no affidavit or outline of submissions had been filed by Ms Fox pursuant to these orders and there was no appearance by Ms Fox. The plaintiff’s legal representative has indicated that the plaintiff has not received any material from Ms Fox and, consequently, the plaintiff has not filed any further affidavit evidence or submissions in reply in support of its claim. The plaintiff now submits that its claim is unopposed.

15    I note for completeness that the court has been provided with the transcripts of the 10 October 2025 hearing and the 19 December 2025 hearing, together with the Registrar’s 19 December 2025 reasons. In broad terms they are consistent with the evidence the plaintiff has given about what was said on those occasions.

16    The plaintiff submits that it seeks to rectify the costs order because an order stating “no order as to costs” has a particular legal meaning, namely that neither of the parties are entitled to costs. In this regard, the plaintiff refers to Trikas v Rheem (Australia) Pty Ltd [1964-5] NSWR 645 at 646 (Taylor J) (Trikas v Rheem) and Wentworth v Wentworth [1999] NSWSC 638 (Santow J) (Wentworth). In Wentworth at [29] Santow J observed that the order “no order as to costs” means that a “judicial decision has been made that there should be no costs ordered to either side and that necessarily means that costs are to lie where they fall.” His Honour referred in this regard to Re Hodgkinson [1895] 2 Ch 190 as applied by Taylor J in Trikas v Rheem (at 646), and to Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 91 (Gaudron and Gummow JJ).

17    The plaintiff submits that it has an entitlement to costs because the $7,063.00 payment by Ms Fox was in fact a payment of the underlying debt and not costs. It is the plaintiff’s position that if there is entitlement to costs, the orders made should reflect the entitlement, irrespective of whether they have been paid or not.

18    Section 43 of FCA Act confers a discretionary power on the court to award costs. This discretion is to be exercised judicially and generally in accordance with settled principles that avoid arbitrariness and serve the need for consistency: see Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224 at [15] (Colvin, Stewart and Feutrill JJ). As the plaintiff submits, the relevant settled principles may be summarised as follows:

(a)    First, the “usual rule” is that costs follow the event: Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [11]–[12] (Black CJ and French J) (Ruddock v Vadarlis (No 2)). This expression has been used to describe an award of costs based on the overall outcome of a case, rather than success or failure on individual issues: Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; 236 FCR 370 at [9]–[18] (Dowsett, Middleton and Gilmour JJ) (Queensland North Australia).

(b)    Secondly, there are certain circumstances where the party that is successful overall may be deprived of costs, or even ordered to pay the costs of the other party or parties. These include where the successful party has only been partially successful in terms of the relief claimed, where the successful party has obtained the claimed relief, but has not succeeded on all bases (factual or legal) upon which it claimed that relief, and where the conduct of the successful party has contributed in some way to the parties incurring unnecessary costs. In this regard, the plaintiff refers to Queensland North Australia at [11], Ruddock v Vadarlis (No 2) at [15], Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158 at [9]–[11] (Greenwood, Rares and Moshinsky JJ) and Fanatics LLC v FanFirm Pty Ltd (Costs) [2025] FCAFC 111 at [5]–[7], [9] (Burley, Jackson and Downes JJ).

(c)    Thirdly, where there has been no adjudication on the merits, depending on the circumstances, it may be appropriate to make no order as to costs: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 624–625 (McHugh J). Where there has been no trial on the merits it will rarely, if ever, be appropriate for a court to endeavour to determine the merits hypothetically in order to determine how the costs of the proceeding should be borne and that, in the exercise of its discretion to order costs, the court may take into account several factors, including: whether the applicant acted reasonably in commencing the proceeding; whether the respondent acted reasonably in defending the proceeding; the conduct of a respondent before the commencement of the proceeding; and whether interlocutory relief has been granted: see Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201 (Hill J).

19    I accept on the basis of the material before me on the plaintiff’s review application that there were no factors which could properly have disentitled the plaintiff to a costs order in its favour. In particular on the basis of Ms Boot’s affidavit of 30 January 2026 (which is not contradicted by Ms Fox) it is sufficiently clear that Ms Fox’s payment of $7,063.00 was intended to go towards the underlying debt. This is consistent with the transcripts of the relevant hearings which the court has obtained.

20    For these reasons, I will grant the plaintiff’s application and make the following orders:

(1)    Paragraph 6 of the orders dated 19 December 2025 be set aside.

(2)    Gravitar Pty Ltd (ACN 166 130 883) (Gravitar) pay the plaintiff’s costs and disbursements to be reimbursed in accordance with s 466(2) of the Corporations Act 2001 (Cth).

(3)    Gravitar pay the plaintiff’s costs of the review application.

Associate:

Dated:    14 July 2026