Goyal and Conneely (Liquidators), in the matter of FSM Development Pty Ltd (in liq) (Costs)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 December 2025
• Neutral Citation: [2025] FCA 1680
• Date: 23 December 2025
• Court: Federal Court

Federal Court of Australia

Goyal and Conneely (Liquidators), in the matter of FSM Development Pty Ltd (in liq) (Costs) [2025] FCA 1680

ORDERS

NSD 4 of 2025

IN THE MATTER OF FSM DEVELOPMENT PTY LTD (IN LIQ)

FSM DEVELOPMENT PTY LTD (IN LIQ) ACN 653 713 878 First Plaintiffs MARKHAM PROPERTY DEVELOPMENT PTY LTD (IN LIQ) ACN 633 152 260 Second Plaintiffs GY INVESTMENTS AUSTRALIA PTY LTD (IN LIQ) ACN 642 541 919 Third Plaintiffs (and others named in the Schedule)

order made by:	JACKMAN J
DATE OF ORDER:	23 DECEMBER 2025

THE COURT ORDERS THAT:

1. The First Plaintiff pay the costs of Ray White Capital Pty Ltd of the interlocutory process filed on 1 December 2025.

2. The First Plaintiff pay the costs of Keyview Investment Management Pty Ltd of the interlocutory process filed on 4 December 2025.

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

REASONS FOR JUDGMENT

JACKMAN J:

1 On 12 December 2025, I dismissed two interlocutory processes brought by FSM against RWC and Keyview respectively seeking production of documents over which legal professional privilege had been claimed: Goyal and Conneely (Liquidators), in the matter of FSM Development Pty Ltd (in liq) [2025] FCA 1625. In these reasons, I have adopted the abbreviations used in that judgment. I set a timetable for the filing and service of written submissions on costs.

2 Although RWC and Keyview succeeded in having the interlocutory processes dismissed, FSM submits that costs should not follow the event for three reasons.

3 First, FSM submits that RWC and Keyview had not properly substantiated their claims for privilege before FSM filed the interlocutory processes, leaving FSM in a position where it was unable to assess the merits of those claims. As FSM submits, RWC claimed privilege in relation to more than 2,660 documents and Keyview claimed privilege for 1,176 documents pursuant to schedules which gave details of the documents but provided little information about the claims themselves, describing them merely as “LPP” or “Common Interest Privilege”. FSM points out that claims for legal advice and litigation privilege were not distinguished. RWC and Keyview submit that the approach which they took was reasonable and conventional in relation to a very large number of documents, and was consistent with s 37N of the Federal Court of Australia Act 1976 (Cth), which obliges the parties to a civil proceeding to conduct the proceeding in a way that is consistent with the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Accordingly, RWC and Keyview submit that it was neither necessary nor feasible for them to provide an affidavit individually addressing each of the thousands of documents over which privilege was claimed. Further, RWC and Keyview point out that they did provide extensive and detailed evidence on 9 December 2025, three days before the hearing, justifying the claims for privilege over the relatively small selection of documents which were the subject of the interlocutory processes, but the service of that evidence did not lead to any change in FSM’s position and FSM pressed ahead on 12 December 2025 with the full scope of their challenge. I accept the submissions put by RWC and Keyview,...