Australian Securities and Investments Commission v Great Northern Developments Pty Ltd (No. 2)

The case of Australian Securities and Investments Commission v Great Northern Developments Pty Ltd (No. 2) was heard before the Federal Court of Australia. The Australian Securities and Investments Commission (ASIC) sought to establish that Great Northern Developments Pty Ltd had contravened certain provisions of the Corporations Act 2001 (Cth). The core of the dispute involved allegations that the defendant company had engaged in misleading or deceptive conduct, failed to act with due care and diligence, and contravened continuous disclosure requirements, all of which are significant breaches under the Act. The court was tasked with determining the extent to which ASIC had succeeded in its claims and the appropriate allocation of costs between the parties.

The primary legal issue before the court was the identification of the substantially successful party for the purpose of determining costs under the Uniform Civil Procedure Rules. ASIC argued that it was substantially successful because it had established breaches of the Corporations Act and, as a result, the defendant had reformed its business practices to comply with the law. Conversely, Great Northern Developments contended that it had not been wholly unsuccessful and thus should not bear the full burden of ASIC's costs. The court had to balance these arguments to ascertain the appropriate cost order.

In its decision, the court found that ASIC had indeed established the breaches of the Corporations Act, and the defendant had subsequently brought its business conduct into compliance. However, because ASIC had not been entirely successful in all its claims, it was not entitled to the full amount of its costs. The court concluded that ASIC was substantially successful but not wholly so, and therefore, the defendant was ordered to pay two-thirds of ASIC's costs up to and including the date of judgment. Moving forward, the defendant was to pay ASIC's costs on the ordinary basis. This nuanced approach recognised ASIC's success in securing compliance while also acknowledging that the defendant had not been wholly unsuccessful.

The final orders of the court mandated that Great Northern Developments pay two-thirds of ASIC's costs up to the date of judgment and thereafter bear its costs on the ordinary basis. This outcome reflects a balanced approach, recognising the substantial success of ASIC in achieving its primary objectives while also considering the defendant's position in the litigation.