Bates v Bechara (No 4) - [2021] FedCFamC2G 304

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bates v Bechara (No 4) [2021] FedCFamC2G 304

File number(s): SYG 821 of 2016

Judgment of: JUDGE A KELLY

Date of judgment: 30 November 2021

Catchwords: BANKRUPTCY – COSTS – Where orders made affirming sequestration order against respondent’s estate and dismissing respondent’s interim application – where Full Court had remitted application for de novo review of registrar’s decision including an order as to costs – where Full Court addressed earlier costs orders – where stay made on enforcement of orders until all orders made consequent upon the remitter of the application for review – where applicant sought costs of de novo hearing – where respondent submitted applicant pay costs as agreed or assessed, respondent pay costs as agreed or assessed, and each party bear their own costs – applicable principles – where costs ought follow the event – where petitioning creditor is entitled to costs – quantification of costs.

Legislation: Bankruptcy Act 1966 (Cth), ss 32, 100, 109
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 214
Judiciary Act 1903 (Cth), s 39B
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth), rr 13.01, 13.02
Federal Court Rules 2011 (Cth), r 40.12

Cases cited: Alrjoob v Minister for Home Affairs [2018] FCA 1144
AOJ15 v Minister for Immigration and Border Protection [2017] FCA 675
Bates v Bechara(No 2) [2021] FCCA 1809
Bates v Bechara (No 3) [2021] FedCFamC2G 155
Bates v Bechara [2021] FCCA 1693
Bechara v Bates (2021) 388 ALR 414
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Division: Division 2 General Federal Law

Number of paragraphs: 22

Date of hearing: On the papers

Place: Melbourne

Applicant: In person

Respondent: No appearance
ORDERS

SYG 821 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PHILIP BATES

Applicant

AND:
MARIA BECHARA

Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

THE COURT ORDERS THAT:
1.The order made on 5 July 2016 that the petitioning creditor’s costs fixed in the sum of $4,667.75 be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth) be affirmed.
2.The costs of the petitioning creditor, including reserved costs, of and incidental to the respondent’s application for review following remitter of that application pursuant to the order of the Full Court of the Federal Court of Australia made on 16 March 2021, including reserved costs, be fixed in the sum of $30,000 and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and…

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 Bates v Bechara (No 4)

Details

AGLC: Bates v Bechara (No 4) [2021] FedCFamC2G 304
Case: [2021] FedCFamC2G 304
Decision Date: 30 November 2021

CaseChat Overview and Summary

In the case of Bates v Bechara (No 4), the court addressed issues relating to bankruptcy and costs following a sequestration order. The petitioner, Bates, had successfully sought the sequestration of the respondent Bechara’s estate and subsequently sought costs associated with the de novo hearing, which was ordered by the Full Court. The Full Court had previously addressed costs orders and stayed the enforcement of these orders pending the outcome of the de novo review.

The legal issues before the court included determining the appropriate costs order in light of the Full Court's previous directions, the principles governing costs in bankruptcy proceedings, and the quantification of those costs. The petitioner argued that costs should follow the event, while the respondent proposed various options for cost-sharing, including bearing their own costs.

The court considered the applicable principles and concluded that the petitioner, as the successful party in the sequestration proceedings, was entitled to costs. The court fixed the total costs at $30,000, which included those ordered by the registrar and the costs of the de novo hearing. The costs were to be paid in the priority provided by section 109(1)(a) of the Bankruptcy Act. The court ordered the respondent to pay the specified amount as costs of the proceeding.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have examined the schedules of both costs and disbursements and will allow fix a total sum for those costs at $30,000.Conclusion The costs ordered to be payable pursuant to the order made consequent upon these reasons for judgment are payable in the priority provided by par 109(1)(a) of the Bankruptcy Act. So too are the costs payable and fixed pursuant to the order of the registrar made on 5 July 2016.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 821 of 2016
Judgment of:	JUDGE A KELLY
Date of judgment:	30 November 2021
Catchwords:	BANKRUPTCY – COSTS – Where orders made affirming sequestration order against respondent’s estate and dismissing respondent’s interim application – where Full Court had remitted application for de novo review of registrar’s decision including an order as to costs – where Full Court addressed earlier costs orders – where stay made on enforcement of orders until all orders made consequent upon the remitter of the application for review – where applicant sought costs of de novo hearing – where respondent submitted applicant pay costs as agreed or assessed, respondent pay costs as agreed or assessed, and each party bear their own costs – applicable principles – where costs ought follow the event – where petitioning creditor is entitled to costs – quantification of costs.
Legislation:	Bankruptcy Act 1966 (Cth), ss 32, 100, 109 Federal Circuit and Family Court of Australia Act 2021 (Cth), s 214 Judiciary Act 1903 (Cth), s 39B Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth), rr 13.01, 13.02 Federal Court Rules 2011 (Cth), r 40.12
Cases cited:	Alrjoob v Minister for Home Affairs [2018] FCA 1144 AOJ15 v Minister for Immigration and Border Protection [2017] FCA 675 Bates v Bechara(No 2) [2021] FCCA 1809 Bates v Bechara (No 3) [2021] FedCFamC2G 155 Bates v Bechara [2021] FCCA 1693 Bechara v Bates (2021) 388 ALR 414 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
Division:	Division 2 General Federal Law
Number of paragraphs:	22
Date of hearing:	On the papers
Place:	Melbourne
Applicant:	In person
Respondent:	No appearance

SYG 821 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PHILIP BATES Applicant
AND:	MARIA BECHARA Respondent