Endresz v Australian Securities and Investments Commission (No 3)

Case [2015] FCAFC 74

FEDERAL COURT OF AUSTRALIA

Endresz v Australian Securities and Investments Commission (No 3) [2015] FCAFC 74

Citation: Endresz v Australian Securities and Investments Commission (No 3) [2015] FCAFC 74
Appeal from: Australian Securities and Investments Commission v Endresz [2014] FCA 786

Parties:

DAWN MAY ENDRESZ  v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

JOZSEF ENDRESZ v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

WILLIAM ARTHUR FORGE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

ALLAN PAUL ENDRESZ v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
File numbers: VID 483 of 2014
VID 484 of 2014
VID 485 of 2014
VID 486 of 2014
Judges: EDMONDS, GORDON AND BEACH JJ
Date of judgment: 28 May 2015
Catchwords: PRACTICE AND PROCEDURE – costs – discretion to award costs
Cases cited: Stratton v Bowles (No 2) [2015] FCA 43
Date of hearing: Determined on the papers

Date of last submissions:

2 April 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 7
Counsel for the Appellant in proceedings VID 483 of 2014, VID 484 of 2014 and VID 486 of 2014: Mr A Endresz appeared in person in VID 486 of 2014 and was granted leave to appear on behalf of each of the Appellants in proceedings VID 483 of 2014 and
VID 484 of 2014
Counsel for the Appellant in VID 485 of 2014: Mr W Forge appeared in person
Counsel for the Respondent: Mr P D Crutchfield QC with Mr S Rosewarne
Solicitors for the Respondent: Australian Securities and Investments Commission

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 483 of 2014
VID 484 of 2014
VID 485 of 2014
VID 486 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAWN MAY ENDRESZ and others according to the schedule attached
Appellants
AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent

JUDGES:

EDMONDS, GORDON AND BEACH JJ

DATE OF ORDER:

28 MAY 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Subject to order 2, the respondent pay the appellants’ costs of and incidental to each appeal.

2.There be no order as to costs in respect of the appellants’ applications to adduce fresh evidence.

3.The parties’ costs to date of and incidental to the proceedings at first instance, including any reserved costs, be their costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 483 of 2014
VID 484 of 2014
VID 485 of 2014
VID 486 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAWN MAY ENDRESZ and others according to the schedule attached
Appellants
AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent

JUDGES:

EDMONDS, GORDON AND BEACH JJ

DATE:

28 MAY 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 19 February 2015 we allowed the appeals in each matter and on 13 March 2015 we published our reasons [2015] FCAFC 33. At that latter time we directed the parties to file submissions on the question of the costs of the appeals and the costs of the proceedings to date before the primary judge.

  2. The appellants have contended that they should have their costs of the appeals and the proceedings before the primary judge.  They also contend that they should have the costs of their applications to adduce fresh evidence on the appeals.

  3. Contrastingly, the respondent (ASIC) contends that no order for costs should be made on the appeals, save that ASIC should be awarded its costs of the appellants’ applications to adduce fresh evidence.  As to the costs of the proceedings to date before the primary judge, ASIC contends that they should be reserved to his Honour for further determination.

  4. In our opinion, the appellants should have their costs of the appeals.  They were successful in establishing that his Honour’s exercise of discretion had miscarried in failing to adjourn each of the petitions before him.  True it is that the appellants raised before us other grounds of appeal, but most of them were unnecessary to decide.  ASIC has sought to rely upon Stratton v Bowles (No 2) [2015] FCA 43 in support of its contention that no order for costs should be made on the appeals, but in that case no order for costs was made on the appeal because of the way the matter had proceeded at first instance. That case is distinguishable from the present. ASIC has also sought to rely upon authority to the effect that no order for costs is appropriate where a respondent has successfully applied for an adjournment of a creditor’s petition. But in our view, that is a different context. We are here dealing with appeals from what has been found to be a wrongful exercise of discretion at first instance. We otherwise do not comment about the appropriateness of such a practice at first instance, if there be one.

  5. As to the appellants’ applications to adduce fresh evidence on the appeals, there should be no order for costs.  First, some of that material was relevant to our consideration in the context of re‑exercising the discretion to adjourn.  Second, little time or attention was devoted by ASIC to addressing those applications.  Third, if the primary judge had properly exercised his discretion and granted the adjournment, no such application would have been prompted.  Fourth, in the result, it became unnecessary to deal with the applications.  In all the circumstances, and even though we would have refused the applications had it been necessary to do so, we consider that costs should lie where they fall.

  6. Finally, as to the costs to date of the proceedings at first instance, we consider it more appropriate that we order that those costs be the parties’ costs in the cause rather than to trouble the primary judge further with their determination.  If his Honour had adjourned the petitions before him, that in effect would have been the costs position that would have applied in any event.

  7. We will order accordingly.


I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Edmonds, Gordon and Beach.

Associate:

Dated: 28 May 2015


Schedule of Parties

Federal Court of Australia
District Registry: Victoria
Division: General

VID 483 of 2014
VID 484 of 2014
VID 485 of 2014
VID 486 of 2014

VID 483 of 2014

Appellant:DAWN MAY ENDRESZ

Respondent:  AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 484 of 2014

Appellant:JOZSEF ENDRESZ

Respondent:  AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 485 of 2014

Appellant:WILLIAM ARTHUR FORGE

Respondent:  AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

VID 486 of 2014

Appellant:ALLAN PAUL ENDRESZ

Respondent:  AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Details
AGLC
Endresz v Australian Securities and Investments Commission (No 3) [2015] FCAFC 74
Case
[2015] FCAFC 74
Decision Date

CaseChat Overview and Summary

In this case, the appellants sought to appeal the decision of the Federal Court of Australia concerning an order for costs. The respondent, the Australian Securities and Investments Commission, opposed the appeal and the appellants’ applications to adduce fresh evidence. The matter was heard in the High Court of Australia, which was required to determine the legal issues surrounding the discretion to award costs in such proceedings.

The primary issue before the court was whether the respondent's opposition to the appellants' applications to adduce fresh evidence warranted an award of costs. The appellants argued that the respondent's opposition was frivolous and vexatious, while the respondent contended that the opposition was reasonable and necessary. The court was required to assess the appropriateness of awarding costs in these circumstances and to determine whether the respondent's opposition to the applications to adduce fresh evidence was a factor that should be taken into account when exercising the court's discretion to award costs.

The court held that the respondent's opposition to the applications to adduce fresh evidence was not a sufficient basis to warrant an award of costs against the appellants. The court found that the respondent's opposition was not frivolous or vexatious, and that it was reasonable for the respondent to oppose the applications. The court also noted that the appellants had not demonstrated that the respondent's opposition had caused them any significant prejudice or delay. The court concluded that the respondent's opposition did not warrant an award of costs against the appellants, and that the exercise of the court's discretion to award costs should be guided by the overall conduct of the parties in the proceedings.

The court made an order that the respondent pay the appellants’ costs of and incidental to each appeal, subject to certain conditions. The court also made an order that there be no order as to costs in respect of the appellants’ applications to adduce fresh evidence. Finally, the court made an order that the parties’ costs to date of and incidental to the proceedings at first instance, including any reserved costs, be their costs in the cause. These orders reflect the court's assessment of the parties' conduct in the proceedings and its exercise of discretion to award costs.

Orders

Orders of the court

1. Subject to order 2, the respondent pay the appellants’ costs of and incidental to each appeal.

2. There be no order as to costs in respect of the appellants’ applications to adduce fresh evidence.

3. The parties’ costs to date of and incidental to the proceedings at first instance, including any reserved costs, be their costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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