Costs not guaranteed when warrant’s sought ex-parte

Seeking adverse costs against an examinee unwilling to be examined proved too much for Federal Court judge Geoffrey Kennett who this morning refused to make such an order despite granting a warrant for the elusive examinee’s arrest.

“Although there appear to be sound reasons why Mr Ayache should be ordered to pay those costs, the application has been heard ex parte and the evidence before me does not establish that Mr Ayache was on notice of a potential adverse costs order.” Justice Geoffrey Kennett.

Vincents director Henry McKenna applied for the warrant after Khaled Ayache of Glencairn Crescent, Broadmeadows VIC 3047 failed to respond to a notice to produce and was a no show on June 2, the date an examination summons issued in April required Ayache to attend court so McKenna could question him about the affairs of Raised Pty Ltd (Raised).

ASIC records show Ayache as the company’s incumbent director though the RoCAP on file has been completed by Razma Hassan-Sardie, who makes frequent declarations throughout the document that they were not a director of Raised at the relevant time having retired in June 2020.

McKenna was appointed liquidator in February 2024 after WorkCover Queensland applied to have Raised wound up.

In McKenna (liquidator), in the matter of Raised Pty Ltd (in liq) [2025] FCA 699 Justice Kennett explained that McKenna had previously obtained orders for substituted service and the court was satisfied service had been effected.

But when it came to making an order for the costs of the warrant application and the costs thrown away as a result of Ayache’s failure to attend the examination, the judge baulked.

“Although there appear to be sound reasons why Mr Ayache should be ordered to pay those costs, the application has been heard ex parte and the evidence before me does not establish that Mr Ayache was on notice of a potential adverse costs order,” the judge said.

“A revised set of proposed orders handed up in court on 23 June 2025 contemplated that the question of costs would be referred for determination by a registrar.

“This is a sensible way to deal with the issue; however, I am not certain that the power of a registrar to award costs “of or in connection with an application heard by a Registrar” in item 29 of Schedule 2 to the Federal Court Rules 2011 (Cth) would extend to awarding the costs of this application.

“The costs of the application will simply be reserved,” the judge concluded.