FEDERAL CIRCUIT COURT OF AUSTRALIA
Badge v Smithdene Pty Ltd [2021] FCCA 1195
File number(s): MLG 2343 of 2016 Judgment of: JUDGE RIETHMULLER Date of judgment: 31 May 2021 Catchwords: BANKRUPTCY – costs application – allowed Legislation: Bankruptcy Act 1966 (Cth) ss 81, 120, 139D, 139E
Federal Circuit Court Rules 2001
Federal Circuit Court (Bankruptcy) Rules 2016, r. 13.01
Federal Court Rules 2011, rr. 25.03, 25.12, 40
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18]; 290 ALR 288
Law Society of New South Wales v Foreman’s (No 2) [2994] NSWCA 69; (1994) 34 NSW LR 408
LFDB V Ms S M (No 2) [2018] FCA 2062
Seven Network Ltd v News Ltd [2007] FCA 2059
Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No 4) [2012] FCA 652,
Number of paragraphs: 53 Date of last submissions: 23 November 2020 Date of hearing: 23 November 2020 Place: Melbourne (via Microsoft Teams)
Table of Corrections 3 June 2021 In cover page appearances ‘Mr Morris’ added as Counsel for the Applicant. 3 June 2021 In Order 1 the letter‘s’ added to the word ‘Respondent’ to read as ‘Respondents’. 3 June 2021 ‘Judge’ added to cover page for ‘Judgment of’ to read as ‘Judge Riethmuller’ 3 June 2021 ‘Judge’ added to orders page to read as ‘Order made by Judge Riethmuller’.
Solicitor for the Applicant: Hutchinson Legal Counsel for the Applicant: Mr Bigmore and Mr Morris Solicitor for the Respondents: Thomas Egan & Associates Counsel for the Respondents: Mr Moon ORDERS
MLG 2343 of 2016 IN THE MATTER OF MICHAEL DAVID BADGE
BETWEEN: MICHAEL DAVID BADGE
Applicant
AND: SMITHDENE PTY LTD
First Respondent
AND: JOAN WENDY MEURS
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
31 May 2021
THE COURT ORDERS THAT:
1.The Respondents pay the Applicant’s costs fixed in the sum of $251,972.32.
REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
BACKGROUND
The applicant in this matter seeks costs, following the settlement of proceedings, to recover assets from the respondents. The proceedings were settled between the parties in April 2020 for the sum of $100,000.00, following the acceptance of a formal offer made by the respondents.
Procedural history
The proceedings have had a long and complex procedural history, far greater than most cases in this jurisdiction. Following commencement of proceedings, the respondents filed a defence and requested further and better particulars of the Statement of Claim in December 2016. A number of interlocutory events were undertaken leading up to a Mediation before a Registrar of the Court in August 2017.
Following the mediation, the applicant was ordered to file and serve Affidavit material by November 2017. In September 2017, the applicant served an Amended Statement of Claim. The matter was listed for hearing in mid-2018.
In early 2018, an…
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- AGLC
- Badge v Smithdene Pty Ltd [2021] FCCA 1195
- Case
- [2021] FCCA 1195
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CaseChat Overview and Summary
The central legal issue before the court was the determination of the quantum of costs to be awarded to the applicant, specifically focusing on what costs were "fairly and reasonably" incurred, having regard to the principles of proportionality in litigation.
Judge Riethmuller reasoned that while the total expenditure by both parties on the litigation was substantial, the awarded costs should reflect a proportionate amount relative to the issues, complexity, length, and value of the proceedings. Applying this principle, the court fixed the costs payable by the respondents to the applicant at $251,972.32. The court ordered that the respondents pay the applicant’s costs fixed in the sum of $251,972.32.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Respondents pay the Applicant’s costs fixed in the sum of $251,972.32.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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