Commissioner of Taxation v Rawson Finances Pty Ltd (Costs) [2024] FCA 19

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Rawson Finances Pty Ltd (Costs) [2024] FCA 19 File number(s): NSD 1329 of 2014

Judgment of: PERRY J

Date of judgment: 19 January 2024

Catchwords: COSTS — application by Commissioner of Taxation for indemnity costs— where applicant wholly successful in setting aside judgment of the Full Court of the Federal Court for fraud —whether indemnity costs should be awarded having regard to the public interest in the Commissioner applying to set aside earlier Full Court decision obtained by fraud — where general principle is that indemnity costs can only be awarded on the basis of delinquency in the conduct of the present proceedings, not antecedent conduct — where contempt of court is an exception to the general principle based on the public interest in ensuring administration of justice and upholding rule of law — where analogous considerations apply in context of setting aside judgment obtained by fraud, given public interest— whether Clone Pty Ltd v Players Pty Ltd (in Liquidation) (2016) 127 SASR; [2016] SASFC 134 requires different outcome — where Clone distinguishable because it considered malpractice, not fraud — held: indemnity costs payable for entire proceeding, save for costs application COSTS — alternatively, whether Rawson's conduct in this proceeding warrants indemnity costs — where respondent did not admit fraud in circumstances where consent orders were made excusing respondent from pleading to the allegations of fraud against company officers and exempting respondent from disclosing documents — where respondent positively ran a knowingly false case that the loans the subject of the Full Court decision were genuine after late admission by the respondent of the existence of the back to back loans following the production of evidence from Israel irrefutably establishing their existence