Gillfillan v Australian Securities and Investments Commission (No 2)

The appeal concerned the appropriate costs award following a decision where the appellants, Gillfillan and others, achieved only partial success against the Australian Securities and Investments Commission (ASIC). The Court of Appeal of New South Wales was required to determine whether interest should be awarded on the costs ordered.

The central legal issue was how to apportion costs when a party has had mixed success on appeal. Specifically, the court had to consider whether the general rule that costs follow the event should be departed from, and if so, to what extent. Furthermore, the court was asked to determine whether the discretion to award interest on costs should be exercised in this instance, and if so, at what rate and for what period.

The court reasoned that while the appellants had not been entirely successful, their partial success was significant enough to warrant a departure from the usual order that the unsuccessful party pays the costs of the successful party. The court noted that ASIC had also achieved a degree of success. Consequently, the court ordered that each party should bear their own costs of the appeal. Regarding interest, the court declined to award interest on the costs, finding no exceptional circumstances to justify such an order in this particular case.