Australian Securities Commission v Berona Investments Pty Ltd & Anor [1995] FCA 928

Australian Securities Commission v Berona Investments Pty Ltd & Anor [1995] FCA 928

Given the complexity and unresolved factual issues, and as neither side ultimately succeeded or wished to proceed, it is inappropriate to determine merits hypothetically. The conduct of the respondents justified appointment of receivers, but does not warrant a costs order against them. Justice requires that each party bear its own costs. Receivers' costs and remuneration are proper as the conduct of respondents necessitated their appointment.

Parties
Applicant: Australian Securities Commission; Seventh Respondent: Berona Investments Pty Ltd; Eighth Respondent: Berona Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
20 November 1995
Procedural Posture
Motion/interlocutory Application / Costs Determination Following Abandonment of Principal Application and Discharge of Interim Orders
Outcome
Seventh and eighth respondents' notice of motion dismissed against ASC. No order as to costs. Liberty to apply for further directions regarding receivers’ costs and accounts.
Legal Topics
Costs, Receivership, Interlocutory Orders, Corporations Law S.1323
Practice and Procedure Corporations Costs Receivership Interlocutory Orders Corporations Law S.1323

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Parties

Australian Securities Commission

Applicant

Berona Investments Pty Ltd

Seventh Respondent

Berona Holdings Pty Ltd

Eighth Respondent

Procedural Posture

Motion/interlocutory Application / Costs Determination Following Abandonment of Principal Application and Discharge of Interim Orders

Legal Issues

  1. 1 Whether costs should be awarded following the abandonment of the principal application and the discharge of interim receivers
  2. 2 Whether the merits should be determined as if application hypothetically heard when filed
  3. 3 Whether the conduct of the seventh and eighth respondents necessitated the appointment of receivers and should affect costs

Ratio Decidendi

Given the complexity and unresolved factual issues, and as neither side ultimately succeeded or wished to proceed, it is inappropriate to determine merits hypothetically. The conduct of the respondents justified appointment of receivers, but does not warrant a costs order against them. Justice requires that each party bear its own costs. Receivers' costs and remuneration are proper as the conduct of respondents necessitated their appointment.

Court Disposition

Seventh and eighth respondents' notice of motion dismissed against ASC. No order as to costs. Liberty to apply for further directions regarding receivers’ costs and accounts.

Orders

  • The seventh and eighth respondents' notice of motion filed 30 August 1993 be dismissed as against the ASC.
  • There be no order as to costs.