Australian Securities & Investments Commission v Kyriackou [2010] FCA 9

Australian Securities & Investments Commission v Kyriackou [2010] FCA 9

There were no special circumstances warranting departure from the usual rule. The court was not able to form a clear view about the merits of ASIC’s case without a trial. All parties acted reasonably up to the termination of the mediation, and therefore there should be no order as to the costs of the proceeding except that the defendants pay ASIC's costs of and incidental to their motion.

Jurisdiction
Australia
Judgment Date
20 January 2010
Procedural Posture
Civil / Costs Application After Discontinuance
Outcome
The first and fourth to seventh defendants' motion for indemnity costs is dismissed. Otherwise, leave is given to ASIC to discontinue the proceeding and there is no order as to costs of the proceeding, except the first and fourth to seventh defendants must pay ASIC's costs of and incidental to their motion.
Legal Topics
['costs' 'managed Investment Schemes' 'discontinuance' 'winding Up' 'interlocutory Relief']
['civil Procedure' 'corporate Law'] ['costs' 'managed Investment Schemes' 'discontinuance' 'winding Up' 'interlocutory Relief']

Case Brief

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Procedural Posture

Civil / Costs Application After Discontinuance

Legal Issues

  1. 1 ['Whether the defendants should recover costs on an indemnity basis after the proceeding was discontinued by consent' "Whether ASIC's case was bound to fail from the outset" 'Whether ASIC surrendered its case or acted unreasonably in conducting the litigation' 'Whether there was departure from the usual rule on costs in discontinued litigation']

Ratio Decidendi

There were no special circumstances warranting departure from the usual rule. The court was not able to form a clear view about the merits of ASIC’s case without a trial. All parties acted reasonably up to the termination of the mediation, and therefore there should be no order as to the costs of the proceeding except that the defendants pay ASIC's costs of and incidental to their motion.

Court Disposition

The first and fourth to seventh defendants' motion for indemnity costs is dismissed. Otherwise, leave is given to ASIC to discontinue the proceeding and there is no order as to costs of the proceeding, except the first and fourth to seventh defendants must pay ASIC's costs of and incidental to their motion.

Orders

  • ['The plaintiff is given leave pursuant to O 22 r 2(1)(d) of the Federal Court Rules to discontinue the proceeding.' "The first and fourth to seventh defendants' notice of motion filed on 12 September 2008 is dismissed." "The first and fourth to seventh defendants pay the plaintiff's costs of and incidental to that...