Mentha v Australian Securities and Investments Commission (Costs) [2024] FCA 375

Mentha v Australian Securities and Investments Commission (Costs) [2024] FCA 375

The Applicants were not entitled to their costs because the Revocation Decision did not constitute capitulation to the judicial review case challenging the Authorisation Decision. The proceeding concerned whether the Authorisation Decision was affected by legal error when made, while the Revocation Decision was made later, after the NSW Judgment and expiry of the appeal period, on the basis that Atradius no longer intended to use the authorisation. The NSW Judgment did not make success in the judicial review proceeding inevitable, Atradius had filed a Notice of Intention to Appeal, and ASIC did not unreasonably let the issue drift. The usual course therefore applied: no order for costs of...

Jurisdiction
Australia
Judgment Date
16 April 2024
Procedural Posture
Costs Application in a Judicial Review Proceeding Concerning Asic's Authorisation of Atradius as an Eligible Applicant / Proceeding Dismissed by Consent With No Hearing on the Merits; Costs Application Determined on the Papers
Outcome
The Applicants' application for costs was dismissed.
Legal Topics
['costs After Consent Dismissal Without Merits Determination' 'capitulation or Surrender' 'indemnity Costs' 'judicial Review of ASIC Decision' 'eligible Applicant Authorisation' 'revocation Decision']
['costs' 'administrative Law' 'corporations and Corporate Insolvency'] ['costs After Consent Dismissal Without Merits Determination' 'capitulation or Surrender' 'indemnity Costs' 'judicial Review of ASIC Decision' 'eligible Applicant Authorisation' 'revocation Decision']

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Procedural Posture

Costs Application in a Judicial Review Proceeding Concerning Asic's Authorisation of Atradius as an Eligible Applicant / Proceeding Dismissed by Consent With No Hearing on the Merits; Costs Application Determined on the Papers

Legal Issues

  1. 1 ["Whether ASIC and Atradius had in substance surrendered or capitulated so as to justify an order that they pay the Applicants' costs of the proceeding." 'Whether the Applicants were entitled to indemnity costs from 4 May 2023 following delivery of the NSW Judgment.' 'Whether each party should bear its own costs of the proceeding, subject to earlier costs orders.' "Whether the Applicants should pay the Respondents' costs of the costs application."]

Ratio Decidendi

The Applicants were not entitled to their costs because the Revocation Decision did not constitute capitulation to the judicial review case challenging the Authorisation Decision. The proceeding concerned whether the Authorisation Decision was affected by legal error when made, while the Revocation Decision was made later, after the NSW Judgment and expiry of the appeal period, on the basis that Atradius no longer intended to use the authorisation. The NSW Judgment did not make success in the judicial review proceeding inevitable, Atradius had filed a Notice of Intention to Appeal, and ASIC did not unreasonably let the issue drift. The usual course therefore applied: no order for costs of...

Court Disposition

The Applicants' application for costs was dismissed.

Orders

  • ["The Applicants' application for costs be dismissed." 'Subject to paragraph 2 of the orders made on 20 June 2023 and paragraph 3 of these orders, each party bear its own costs of the proceeding.' "The Applicants pay the Respondents' costs of and incidental to the Applicants' application for costs, to be taxed if...