Australian Securities and Investments Commission v GetSwift Limited (Costs) [2021] FCA 1622

Australian Securities and Investments Commission v GetSwift Limited (Costs) [2021] FCA 1622

It was appropriate to make a costs order now because the liability judgment was of mammoth scale, leave to appeal had been granted and the timing of any appeal or further delay was uncertain, so the interests of finality supported resolving costs for the liability aspect. Although ASIC's cases against GetSwift, Mr Hunter and Mr Macdonald differed, the allegations were highly intertwined and almost identical in their cardinal elements, so those defendants should pay the 92.5% balance of ASIC's costs not covered by the agreed order against Mr Eagle. ASIC should pay the defendants' costs thrown away because the costs issue could have been dealt with on 26 November 2021.

Jurisdiction
Australia
Judgment Date
20 December 2021
Procedural Posture
Costs Application in a Federal Court Corporations Regulator Proceeding / After Liability Judgment and Before Penalty Hearing/finalisation of the Proceeding
Outcome
Costs orders made substantially in ASIC's favour, with ASIC to pay costs thrown away by the timing of the order.
Legal Topics
['costs Following Liability Judgment' 'apportionment of Costs Between Defendants' 'joint and Several Liability for Costs' 'overarching Purpose of Civil Practice and Procedure']
['costs' 'corporations Law' 'regulator and Consumer Protection'] ['costs Following Liability Judgment' 'apportionment of Costs Between Defendants' 'joint and Several Liability for Costs' 'overarching Purpose of Civil Practice and Procedure']

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Procedural Posture

Costs Application in a Federal Court Corporations Regulator Proceeding / After Liability Judgment and Before Penalty Hearing/finalisation of the Proceeding

Legal Issues

  1. 1 ['Whether a costs order should be made at this stage of the proceeding in respect of the liability aspect of the proceeding.' "Whether ASIC's costs should be apportioned between the defendants, including GetSwift Ltd, Mr Hunter and Mr Macdonald." 'Whether ASIC should pay costs thrown away because the costs order was made on 20 December 2021 rather than 26 November 2021.']

Ratio Decidendi

It was appropriate to make a costs order now because the liability judgment was of mammoth scale, leave to appeal had been granted and the timing of any appeal or further delay was uncertain, so the interests of finality supported resolving costs for the liability aspect. Although ASIC's cases against GetSwift, Mr Hunter and Mr Macdonald differed, the allegations were highly intertwined and almost identical in their cardinal elements, so those defendants should pay the 92.5% balance of ASIC's costs not covered by the agreed order against Mr Eagle. ASIC should pay the defendants' costs thrown away because the costs issue could have been dealt with on 26 November 2021.

Court Disposition

Costs orders made substantially in ASIC's favour, with ASIC to pay costs thrown away by the timing of the order.

Orders

  • ["Subject to order 2, Mr Eagle pay 7.5% of ASIC's costs of the proceeding." "Subject to order 2, GetSwift Ltd, Mr Hunter and Mr Macdonald pay 92.5% of ASIC's costs of the proceeding." "ASIC pay the defendants' costs thrown away by reason of Order 1 being made today rather than on 26 November 2021."]