Australian Securities & Investments Commission v Hawley (No. 2) [2008] FCA 1598

Australian Securities & Investments Commission v Hawley (No. 2) [2008] FCA 1598

Although Mr Hawley was the real winner on balance, ASIC's scepticism of his reasons for wanting to go overseas was appropriate, so indemnity costs were not warranted; however ASIC should pay two thirds of Mr Hawley's costs of the proceedings before Perram J. No costs order should be made for the proceedings generally because the undertaking regime contemplated that, if Mr Hawley notified ASIC of an intention to travel, ASIC was likely to apply.

Jurisdiction
Australia
Judgment Date
10 October 2008
Procedural Posture
Civil Proceeding by ASIC Seeking Orders Including Restraining the Defendant From Leaving Australia Until 5 December 2008 / Costs and Final Dismissal After Judgment
Outcome
The plaintiff was ordered to pay two thirds of the defendant's costs in relation to the proceeding before Perram J, with no order as to costs otherwise, and the proceeding was ordered to be dismissed on and from 5 December 2008.
Legal Topics
['costs Discretion' 'indemnity Costs' 'effect of Settlement Correspondence' 'dismissal of Proceeding' 'liberty to Apply']
['civil Procedure' 'costs'] ['costs Discretion' 'indemnity Costs' 'effect of Settlement Correspondence' 'dismissal of Proceeding' 'liberty to Apply']

Case Brief

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Procedural Posture

Civil Proceeding by ASIC Seeking Orders Including Restraining the Defendant From Leaving Australia Until 5 December 2008 / Costs and Final Dismissal After Judgment

Legal Issues

  1. 1 ['Whether the defendant should receive an indemnity costs order based on correspondence offering to consent to a less favourable regime than the result achieved.' "Whether the plaintiff should pay a proportion of the defendant's costs of the proceedings before Perram J." 'Whether any order should be made for the costs of the proceedings generally.' 'What final order should be made in relation to the application.']

Ratio Decidendi

Although Mr Hawley was the real winner on balance, ASIC's scepticism of his reasons for wanting to go overseas was appropriate, so indemnity costs were not warranted; however ASIC should pay two thirds of Mr Hawley's costs of the proceedings before Perram J. No costs order should be made for the proceedings generally because the undertaking regime contemplated that, if Mr Hawley notified ASIC of an intention to travel, ASIC was likely to apply.

Court Disposition

The plaintiff was ordered to pay two thirds of the defendant's costs in relation to the proceeding before Perram J, with no order as to costs otherwise, and the proceeding was ordered to be dismissed on and from 5 December 2008.

Orders

  • ['The plaintiff pay two thirds of the costs of the defendant in relation to the proceeding before Perram J, with no order as to costs otherwise.' 'The proceeding be dismissed on and from 5 December 2008.' "The parties have liberty to apply on three days' notice."]