Australian Securities and Investments Commission v Green County Pty Ltd (Costs and Adverse Publicity Orders) [2026] FCA 251

This judgment was the clean-up stage of a larger ASIC case. The main fight had already happened. In April 2025, the Federal Court found that Green County Pty Ltd and Max Funding Pty Ltd had contravened the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code. ASIC’s case against the third respondent, Ms Ivy Tang Gy Ng, was dismissed. Then in December 2025, the Court imposed penalties of $405,000 on Green County and $110,000 on Max Funding.

Even after those findings, two issues were still left open. First, ASIC still wanted adverse publicity orders requiring the corporate respondents to publish a notice about the breaches and the Court’s findings. Second, Ms Ng wanted a more favourable costs order against ASIC. The parties agreed ASIC should pay her ordinary costs because she had successfully defended the case, but she argued that ASIC should pay indemnity costs after 3 September 2024 because ASIC had rejected a settlement offer.

So this was not a decision about whether the companies broke the law in the first place. It was about what should happen after the main liability and penalty rulings. That distinction matters. Courts often treat post-judgment remedies and costs as separate questions requiring their own evidence and their own reasoning.

ASIC asked the Court to order Green County and Max Funding to publish a revised adverse publicity notice. The proposed notice was detailed. It said the companies had been penalised after the Federal Court found they engaged in unlicensed credit activities in relation to four loans provided by Green County to two consumers. It also said Green County had contravened multiple provisions of the National Credit Code in relation to those loans.

The notice then set out the regulatory message ASIC wanted conveyed to the market. It explained that consumer credit providers must hold an Australian Credit Licence and are subject to responsible lending and disclosure obligations. It explained when the Credit Code applies, including where credit is provided for personal, domestic or household purposes, or for certain residential investment purposes. It also explained that a business purpose declaration can be ineffective if the credit provider knew, had reason to believe, or would have known with reasonable inquiries that the real purpose was personal use.

ASIC wanted this notice published in several places: online on the Australian Financial Review and The Australian, on the websites ifa.com.au and theadviser.com.au, and in print in the AFR and the business section of The Australian. For the online publications, ASIC wanted the notice available for at least seven days through a click-through banner in a prominent area of each homepage.

On costs, the issue was narrower but still important. Ms Ng said ASIC should pay indemnity costs after 3 September 2024 because all respondents had made a settlement offer on that date. The offer was global. It proposed a package for the corporate respondents and a separate package for Ms Ng, but the respondents insisted it had to be accepted as a whole. Ms Ng would admit a contravention of section 180 of the Corporations Act and pay a $150,000 penalty, but she would not agree to a disqualification order. ASIC said it would only settle globally if disqualification was included.

The Court had to decide two separate questions.

The first was whether the revised adverse publicity orders were appropriate in the circumstances. The Court accepted that adverse publicity orders can serve legitimate regulatory purposes. They can publicise wrongdoing, remind the market of legal obligations and support deterrence. But that did not end the inquiry. The real question was whether the specific publication method proposed by ASIC was likely to be effective on the evidence before the Court. The Court was concerned with practical effectiveness, not symbolism.

The second question was whether ASIC should pay Ms Ng’s costs on the indemnity basis after 3 September 2024. Indemnity costs are not automatic just because a party wins or because an offer was rejected. The Court had to decide whether ASIC acted unreasonably in rejecting the respondents’ offer. That required looking at the structure of the offer, the fact that it was global and inseparable, the regulator’s public interest role, and the overall outcome of the proceedings rather than only Ms Ng’s position in isolation.

The Court refused to make the revised adverse publicity orders. Justice Shariff accepted that the content of the proposed notice drew attention to important aspects of the regulatory scheme and was adapted to general and specific deterrence. But the Court said the real issue was effectiveness. An order should not be made merely so it can be said that something was done. The Court needed to be satisfied that the proposed publication channels were likely to convey the regulatory message to the target audience.

That evidence was missing. The Court accepted that the AFR and The Australian have national circulation and broad business readership. But both are subscription-based in print and online, and the Court was not prepared to infer that managers of non-bank small business lenders, identified in the earlier liability judgment as part of the relevant market, were readers of those publications. The Court said it might accept that executives at larger banks read them, but that was only one part of the relevant industry.

The Court had even less evidence about ifa.com.au and theadviser.com.au. It was prepared to infer only that they were directed to financial advisers and related professionals. There was no evidence about whether they were behind paywalls or whether participants in the small business lending industry regularly used them. The respondents had also pointed to existing publicity, including ASIC media releases and third-party articles, with at least one article already published on the Adviser website.

In those circumstances, the Court was not satisfied that the regulatory purpose would be achieved by requiring publication of the proposed notice. On the evidence available, the order risked becoming something done merely for its own sake, with a punitive effect on the corporate respondents, rather than a properly targeted regulatory measure. The Court therefore refused the publicity orders.

On costs, the Court held that ASIC must pay Ms Ng’s costs on the ordinary basis, but not on the indemnity basis. The Court accepted that, looking back, the part of the offer dealing with Ms Ng would have produced a better outcome for ASIC than the final result, because ASIC ultimately failed against her. But that was not the whole picture. ASIC obtained a more favourable outcome against the corporate respondents than the offer proposed. The Court therefore assessed the overall outcome and concluded that ASIC had not acted unreasonably in rejecting the offer.

The global nature of the offer was central. The respondents had made clear that they were only prepared to negotiate and agree terms on a global basis. ASIC had also taken a firm position, saying that any global settlement had to include disqualification orders against Ms Ng. The Court held that, given those respective positions, ASIC’s rejection of the offer was not unreasonable. It also rejected the argument that ASIC should have known its case against Ms Ng was doomed to fail. Although ASIC lost against her, the case did not have the character of one that was unreasonable to run.

There are two practical messages here.

First, if a regulator or another party wants a corrective notice, website banner or adverse publicity order, evidence matters. A court may accept that the message itself is worthwhile, but still refuse the order if there is no evidence that the chosen publication channels will reach the right audience. That means evidence about readership, industry habits, subscriptions, paywalls, online traffic, cost and proportionality can be decisive. If your business is resisting a publicity order, those are the kinds of weaknesses to test. If your business is seeking one, those are the kinds of matters that should be proved.

Second, settlement strategy in multi-party proceedings needs careful thought. Ms Ng won her case against ASIC, but still did not get indemnity costs because the settlement offer she relied on was tied to a global package for all respondents. The Court looked at the overall result, including ASIC’s stronger outcome against the companies, and found ASIC had not acted unreasonably. If different respondents have different risk profiles, a single bundled offer may not create the same costs pressure as separate offers tailored to each party.

The broader credit law background is also commercially important. The proposed notice quoted in the judgment explains the compliance point in plain language. A lender generally needs an Australian Credit Licence for consumer credit. A business purpose declaration can take a loan outside that regime only if it is effective. It will not be effective if the lender knew, had reason to believe, or would have known with reasonable inquiries that the loan was really for personal use. For the other loans referred to in the notice, no business purpose declaration had been obtained, and the loans were said to be presumed to be for personal, domestic or household purposes.

For lenders, introducers and referral businesses, that means compliance cannot be built around forms alone. The real commercial question is what inquiries were made, what the business knew, what it should have known, and what records exist to prove that process. This judgment does not re-decide those underlying issues, but it reinforces how they can continue to shape the remedies and costs arguments long after the main liability hearing is over.

The judgment was delivered by Shariff J in the Federal Court of Australia on 20 March 2026. It followed an earlier liability judgment delivered on 15 April 2025 and a penalty judgment delivered on 11 December 2025. The hearing of these remaining issues was on the papers, with the last submissions dated 20 February 2026.

The final orders were short. ASIC was ordered to pay Ms Ng’s costs on the ordinary basis, and the amended statement of claim was otherwise dismissed. No revised adverse publicity orders were made.