Gwe v Commissioner of the Australian Federal Police (No 2)

In *Gwe v Commissioner of the Australian Federal Police (No 2)*, the appellants sought costs following their successful application to have certain property excluded from a freezing order made by the Commissioner of the Australian Federal Police. The matter came before the Court of Appeal of New South Wales, comprising Bathurst CJ, Bell P, and Emmett AJA.

The central legal issue before the Court of Appeal was whether the appellants, having succeeded in their application to exclude property from the freezing order, should be awarded "all costs" of the proceedings. This question involved considering the appropriate basis for the award of costs, specifically whether they should be awarded on a standard or indemnity basis, and the relevant timeframe for such an award.

The Court of Appeal determined that the appellants were entitled to an award of costs on an indemnity basis. Their reasoning was that the Commissioner had persisted with the freezing order in respect of the disputed property despite having been put on notice that the property was not subject to forfeiture. The Court considered that the Commissioner's continued pursuit of the order, after this notice was given, warranted a departure from the usual order for costs on a standard basis. Consequently, the Court varied the previous order regarding costs, stipulating that the costs awarded to the appellants were to be paid on an indemnity basis after 30 March 2020.