Australian Securities and Investments Commission v BHF Solutions Pty Ltd (Costs) [2023] FCA 1007

Australian Securities and Investments Commission v BHF Solutions Pty Ltd (Costs) [2023] FCA 1007

The Court held that despite the applicant not succeeding on the Extended Contract Issue, ASIC substantially obtained all relief sought; the dominant and determinative issue was the Construction Issue, and the unsuccessful issue was not sufficiently discrete or separable to warrant departing from the usual rule that...

Source-derived case information.

Parties
Applicant: Australian Securities and Investments Commission; First Respondent: BHF Solutions Pty Ltd; Second Respondent: Cigno Pty Ltd
Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Costs / Post Remittal Costs Determination
Outcome
Respondents are to pay applicant's costs for both first instance and remittal hearings, including the costs of the costs hearing.
Legal Topics
Costs Orders, Statutory Construction, Credit Contracts, Remittal Proceedings
Commercial Law Corporations Law Regulatory Law Consumer Protection Costs Orders Statutory Construction Credit Contracts Remittal Proceedings

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Summary, issues, holding and outcome

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Parties

Australian Securities and Investments Commission

Applicant

BHF Solutions Pty Ltd

First Respondent

Cigno Pty Ltd

Second Respondent

Procedural Posture

Costs / Post Remittal Costs Determination

Legal Issues

  1. 1 Whether the respondents should pay the applicant’s costs of the first instance hearing in addition to the remittal hearing
  2. 2 Whether the Court should depart from the usual rule that costs follow the event where the applicant was not successful on a substantive discrete issue

Ratio Decidendi

The Court held that despite the applicant not succeeding on the Extended Contract Issue, ASIC substantially obtained all relief sought; the dominant and determinative issue was the Construction Issue, and the unsuccessful issue was not sufficiently discrete or separable to warrant departing from the usual rule that costs follow the event. The respondents are to pay ASIC’s costs of both first instance and remittal hearings.

Court Disposition

Respondents are to pay applicant's costs for both first instance and remittal hearings, including the costs of the costs hearing.

Orders

  • The respondents are to pay the applicant's costs (including reserved costs) of the proceeding (both at first instance and on remittal) as agreed or, failing agreement, as taxed.
  • The respondents are to pay the applicant's costs of and incidental to the costs' hearing on 15 August 2023.