Federal Court of Australia

Australian Securities and Investments Commission v BSF Solutions Pty Ltd (Lump Sum Costs) [2026] FCA 1294

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ liability for costs pursuant to orders 1 and 2 made on 16 June 2026 be in the amount of $1,378,018.

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

REASONS FOR JUDGMENT

JACKMAN J:

1    In Australian Securities and Investments Commission v BSF Solutions Pty Ltd (Costs) [2026] FCA 686, I made orders as to costs in these proceedings and set a timetable for the exchange of affidavits and short written submissions on the amount of the lump sum costs order.

2    ASIC seeks a lump sum costs order in the amount of $1,378,018. That amount is supported by an affidavit of an experienced costs consultant, Ms Scarlett. The amount claimed represents a discount of approximately 39% from the total costs that ASIC has incurred, and the further costs that ASIC estimates it will incur, in these proceedings. Ms Scarlett’s analysis strikes me as being a logical, fair and reasonable estimate of the costs to which ASIC is entitled.

3    Mr Harrison and Mr Swanepoel have made written submissions in which they submit that the costs claimed should be reduced by a further 10–20%. They advance six submissions in support of that contention. I note at the outset that they have filed no evidence in support of their submissions and do not challenge the expertise of, or general methodology used by, Ms Scarlett.

4    First, Mr Harrison and Mr Swanepoel draw attention to the fact that this matter was fixed for a five day trial based on concise statements and documentary evidence. However, the length and nature of the trial has been taken into account in the costs summary provided by Ms Scarlett. Moreover, ASIC incurred costs as a result of the respondents’ requirement that ASIC make its lay and expert witnesses available for cross-examination, even though those requests were ultimately withdrawn.

5    Second, it is submitted that there was an excessive number of fee earners for a matter of this kind, in that 22 different fee earners worked on the matter. I do not regard that as being a consideration that would justify any material reduction to Ms Scarlett’s estimate, and I note that the core solicitors’ team was unchanged over the three years of the proceeding. Ms Scarlett has already applied reductions having appropriate regard to solicitors’ seniority, their attendance at hearings and their attendance at conferences or meetings.

6    Third, it is submitted that the categories of work likely involve duplication or work not ordinarily allowed on taxation. Fourth, it is submitted that the evidence does not explain the methodology used in Ms Scarlett’s appendix of categories of work which may not be fair and reasonable. I reject those submissions. There is ample evidence to explain Ms Scarlett’s approach and the appropriateness of the discounts which she has applied.

7    Fifth, it is submitted that an excessive number of hours have been claimed for work performed by senior and junior counsel for a five-day trial. However, counsels’ fees were incurred across three years in respect of preparations for, and appearances at, multiple case-management hearings, a four-day liability trial and a one-day penalty hearing. The two hearings dealt with multiple legal issues of significant complexity, and the efficiency of the hearings was enhanced by detailed written submissions by counsel.

8    Sixth, it is submitted that claims for external printing and for travel are excessive. However, the external printing costs were largely a consequence of printing the court book for each of the liability trial and the penalty hearing, which I had ordered to be printed in hard copy (and I note that the respondents also requested hard copies). ASIC has not in fact claimed any travel costs as part of its lump sum claim.

9    Accordingly, I reject the submissions made by Mr Harrison and Mr Swanepoel. ASIC’s claim for lump sum costs of $1,378,018 (against total costs incurred of $2,267,647) is well-supported, and is logical, fair, reasonable and appropriate. Accordingly, I make the above order.

Associate:

Dated:    1 September 2026

SCHEDULE OF PARTIES