Dang, in the matter of JMJ Cosmetic Pty Ltd v Mansfield

1. The defendants' application for costs was brought pursuant to leave granted in Order 5 of the Orders made on 18 February 2026.

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

1. These reasons concern an application for costs following an urgent interlocutory application that came before me in my capacity as Commercial and Corporations Duty Judge: Dang, in the matter of JMJ Cosmetic Pty Ltd v Mansfield (Liquidator) [2026] FCA 5. Familiarity with the reasons given for granting the plaintiff leave under s 198G(3)(b) of the Corporations Act 2001 (Cth) is assumed for the purpose of these reasons.
2. The first and second defendants make an application for their costs on an indemnity basis, or alternatively on the ordinary basis. They rely on the affidavit of Emma Therese Boyce, Special Counsel at Bartier Perry Lawyers, affirmed 18 February 2026 (the Boyce Affidavit), and written submissions. The plaintiff opposes the application for costs and contends that there should be no order as to costs. The plaintiff also relies on the Boyce Affidavit and has filed written submissions. I determined this application on the papers.
3. The Boyce Affidavit is addressed to the course of communications between the legal representatives of the parties interested in the proceeding. I have reviewed that correspondence and the parties' written submissions. This is not a case in which it would be appropriate to exercise the Court's discretion to award indemnity costs. The course of communication does not establish conduct on the part of the plaintiff that was unreasonable or that had the effect of unduly prolonging, complicating or increasing the costs of the proceeding. I reject the defendants' application for indemnity costs.
4. For the reasons given in the substantive judgment, the plaintiff acted prudently in taking steps to obtain leave under s 198G(3)(b) of the Act before the expiration of the 21 day period within which to bring a review application under s 35A of the Federal Court of Australia Act 1976 (Cth) given the conflicting lines of authority concerning whether such leave could be granted nunc pro tunc.
5. Having regard to the observations made in Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171; 164 FLR 1 by Barret J at [24], cited in the substantive judgment at [10], the likelihood was that even if the communication between the plaintiff's solicitors and the liquidator's solicitors had been more effective in having each of them understand the other's position, the s 198G(3)(b) application may well have been necessary in any event.
6. Taking this into account, the appropriate costs order is that the costs of the s 198G(3)(b) application should be costs in the cause of the substantive review application. I will make orders accordingly.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.