Barlaw Pty Ltd v Crouch (Trustee) - [2011] FCA 1149

FEDERAL COURT OF AUSTRALIA
Barlaw Pty Ltd v Crouch (Trustee) [2011] FCA 1149

Citation: Barlaw Pty Ltd v Crouch (Trustee) [2011] FCA 1149

Appeal from: Barlaw Pty Ltd v Crouch [2011] FMCA 384

Parties: BARLAW PTY LTD TRADING AS BARRAK LAWYERS v NICHOLAS CROUCH AS TRUSTEE OF THE ESTATE OF MARK ANTHONY BARTOLO

File number: NSD 1387 of 2011

Judge: FOSTER J

Date of judgment: 4 October 2011

Catchwords: PRACTICE AND PROCEDURE – appeal – whether security for the respondent’s costs of an appeal from a Federal Magistrate should be ordered

Legislation: Bankruptcy Act 1966 (Cth), s 180
Corporations Act 2001 (Cth), s 1335
Federal Court of Australia Act 1976 (Cth), s 56

Date of hearing: 4 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Solicitor for the Applicant: Mr B Barrak of Barrak Lawyers

Counsel for the Respondent: Mr AP Spencer

Solicitor for the Respondent: Matthews Folbigg Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1387 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
BARLAW PTY LTD TRADING AS BARRAK LAWYERS (ACN 128 139 935)
Appellant

AND:
NICHOLAS CROUCH AS TRUSTEE OF THE ESTATE OF MARK ANTHONY BARTOLO
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

4 OCTOBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appellant provide security for the respondent’s costs of the appeal in the amount of $35,000, such security to be provided within 28 days of today’s date by way of cash payment to the Registrar of the Court, such amount to stand as security for the respondent’s costs of the appeal and not to be disbursed without a prior order of the Court.
2.In the event that the security is not provided within the timeframe ordered above, the proceeding be stayed.
3.The costs of the respondent’s Interlocutory Application filed on 8 September 2011 be the respondent’s costs in the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1387 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
BARLAW PTY LTD TRADING AS BARRAK LAWYERS (ACN 128 139 935)
Appellant

AND:
NICHOLAS CROUCH AS TRUSTEE OF THE ESTATE OF MARK ANTHONY BARTOLO
Respondent

JUDGE:

FOSTER J

DATE:

4 OCTOBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The respondent, Mr Crouch, has applied to the Court for an order that the appellant provide security for his costs of the appeal in the amount of $80,000 or in such other amount as the court deems fit. In addition, the respondent seeks an order that the amount of the security be paid into Court by cash or bank cheque within 14 days from the date of any order for security. Finally, the respondent seeks an order for the appeal to be stayed pending the payment of security.
In support of his application, the respondent read and relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barlaw Pty Ltd v Crouch (Trustee)

Details

AGLC: Barlaw Pty Ltd v Crouch (Trustee) [2011] FCA 1149
Case: [2011] FCA 1149
Decision Date

CaseChat Overview and Summary

In this case, Barlaw Pty Ltd, trading as Barrak Lawyers, appealed against an order of a Federal Magistrate concerning the resignation of Nicholas Crouch as trustee of the estate of Mark Anthony Bartolo. The Federal Court was required to decide whether security for the respondent's costs of the appeal should be ordered. The central legal issue was whether the appellant should provide security for the costs of the appeal, given the financial circumstances of the appellant and the merits of the appeal. The court held that the appellant should provide security for the respondent's costs of the appeal. The court reasoned that the appellant, being a company with limited financial resources, was unlikely to be able to meet any costs order against it. The court noted the respondent's concession that the appeal was not hopeless and had some merit. The court exercised its discretion to order security, considering it necessary to avoid the costs of the appeal being ultimately borne by the creditors of the bankrupt estate or the respondent personally. The court ordered that the appellant provide security for the respondent's costs of the appeal in the amount of $35,000 within 28 days of the judgment date. If the security was not provided within the specified timeframe, the court ordered that the proceeding be stayed. The court also ordered that the costs of the respondent's interlocutory application be the respondent's costs in the appeal.

Orders