Federal Court of Australia

BPG Pty Limited v Real Estate Institute of New South Wales (Costs Judgment) [2026] FCA 1439

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 50% of the respondent’s costs of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    When delivering judgment on the application for preliminary discovery (BPG Pty Limited v Real Estate Institute of New South Wales (Preliminary Discovery) [2026] FCA 1321), I expressed the provisional view that there should be no order as to costs.

2    That preliminary view reflected the mixed result, that although the application by BPG Pty Ltd (trading as Entry Education) (BPG) under r 7.23 of the Federal Court Rules 2011 (Cth) (FCR) was dismissed, it obtained limited but substantive relief under FCR 7.22, requiring the Real Estate Institute of New South Wales (REINSW) to give discovery directed to identifying the person or corporation responsible for the communications in Schedule A of the orders accompanying the Preliminary Discovery judgment. I afforded the parties an opportunity to make submissions before determining whether that provisional position should become the final order.

3    REINSW submits that the true event was the dismissal of the application against it and that it should receive 90% of its costs. It points, in particular, to the breadth of the case initially advanced under s 45 of the Competition and Consumer Act 2010 (Cth) (CCA), the 34 categories of discovery then sought, the evidence and submissions required to meet that case, and the time occupied at the first hearing before that case was abandoned. It further relies upon the failure of the case later advanced under s 18 of Sch 2 to the CCA (Australian Consumer Law) and contends that the narrow order ultimately made under FCR 7.22 does not fairly reflect the substantial expense to which it was put in meeting the application as formulated against it.

4    BPG submits that my preliminary view was correct. It stresses that it did obtain operative relief under FCR 7.22; that REINSW opposed that relief; that much of the factual material was relevant to both rules; and that REINSW was not a disinterested third party but a commercial competitor which had participated in the dealings giving rise to the application and was likely to hold documents bearing upon the identity of at least one of the persons concerned. BPG says that the denial of its own costs already reflects the extent to which it failed under FCR 7.23.

B    CONSIDERATION

5    There is force in both positions. REINSW’s submission that it should be treated as the wholly successful party cannot be accepted. BPG did obtain access to documents under FCR 7.22. It was directed to the practical object which BPG had for some time sought to achieve, namely identifying those responsible for the relevant communications. Nor is it apt to assimilate REINSW without qualification to some form of neutral third-party repository.

6    But the matter cannot be resolved merely by observing that some relief was obtained. The proceeding, as mounted, was very much broader than the confined order ultimately made. The s 45 CCA case, and then the case under s 18 of the Australian Consumer Law, required REINSW to incur substantial costs in meeting allegations and proposed categories of discovery which failed. Although there was some overlap in the evidence relevant to FCR 7.22 and FCR 7.23, a substantial part of the work generated by the initial application was wasted, in the sense that it made no contribution to the limited relief eventually obtained. BPG’s suggestion that REINSW would in any event have opposed a confined FCR 7.22 application does not answer the difference between the costs of resisting that application and the appreciably greater costs occasioned by the case which was in fact advanced.

C    CONCLUSION

7    I regard the order sought by REINSW (90% of its costs) as excessive. Such an order would fail to give due weight to the fact that BPG secured substantive access to documents, notwithstanding the narrow compass of the order, and would treat the successful FCR 7.22 aspect of the proceeding as little more than happenstance.

8    On reflection, with the benefit of detailed submissions on the point, I am persuaded to revise my provisional view. Doing the best one can in a matter where mathematical precision is neither possible nor required, I consider that the proper reflection of the relative success of the parties, and of the costs unnecessarily occasioned by the manner in which BPG mounted its case, is an order that BPG pay 50% of REINSW’s costs of the application. Such a result also reflects the applicant’s failure to identify and narrow the real issues at an earlier stage of the proceeding and thereby advance the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated: 1 October 2026