Kyriackou v Australian Securities and Investments Commission [2010] FCA 253

Kyriackou v Australian Securities and Investments Commission [2010] FCA 253

The orders of the primary judge were interlocutory, not final, so leave to appeal was required; the applicants failed to establish sufficient doubt concerning the exercise of discretion by the primary judge in relation to costs following discontinuance; accordingly, leave to appeal is refused and the applicants must pay the respondent’s costs.

Parties
First Applicant: Michael Kyriackou; Second Applicant: Australvic Home Loans Pty Ltd (ACN 113 976 257); Third Applicant: Australvic Construction Services Pty Ltd (ACN 117 868 256); Fourth Applicant: Australvic Finance Pty Ltd (ACN 113 860 638); Respondent: Australian Securities and Investments Commission
Jurisdiction
Australia
Judgment Date
22 March 2010
Procedural Posture
Application for Leave to Appeal / Judgment on Application for Leave to Appeal
Outcome
Application for leave to appeal refused.
Legal Topics
Interlocutory Orders, Leave to Appeal, Costs on Discontinuance, Managed Investment Schemes
Corporations Law Civil Procedure Interlocutory Orders Leave to Appeal Costs on Discontinuance Managed Investment Schemes

Case Brief

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Parties

Michael Kyriackou

First Applicant

Australvic Home Loans Pty Ltd (ACN 113 976 257)

Second Applicant

Australvic Construction Services Pty Ltd (ACN 117 868 256)

Third Applicant

Australvic Finance Pty Ltd (ACN 113 860 638)

Fourth Applicant

Australian Securities and Investments Commission

Respondent

Procedural Posture

Application for Leave to Appeal / Judgment on Application for Leave to Appeal

Legal Issues

  1. 1 Whether leave to appeal is required from the primary judge's orders
  2. 2 Whether the primary judge's orders were interlocutory or final
  3. 3 Whether leave to appeal should be granted under Décor Corporation Pty Ltd v Dart Industries Inc criteria

Ratio Decidendi

The orders of the primary judge were interlocutory, not final, so leave to appeal was required; the applicants failed to establish sufficient doubt concerning the exercise of discretion by the primary judge in relation to costs following discontinuance; accordingly, leave to appeal is refused and the applicants must pay the respondent’s costs.

Court Disposition

Application for leave to appeal refused.

Orders

  • Leave to appeal from the orders of Goldberg J in the proceedings numbered VID 448 of 2007 of 20 January 2010 be refused.
  • The applicants for leave to appeal pay the costs of the respondent to that application, such costs to be taxed in default of agreement.