FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATTERHAM v GOLDBERG TRADING AS TURNER FREEMAN & ORS | [2014] FCCA 302 |
| Catchwords: BANKRUPTCY – Bankruptcy notice – application to set aside bankruptcy notice – where applicant involved in prior proceedings – where applicant’s solicitors changed during prior proceedings – where applicant’s second solicitors retained the same counsel – where counsel appeared on behalf of applicant in High Court proceedings – where neither counsel nor solicitors had entered into the form of costs agreement required under the Legal Profession Act 2004 (NSW) with applicant – where an account submitted to applicant by solicitors for disbursement of counsel’s fees – where fees not paid – where costs assessment sought on solicitor client basis – where costs assessor’s decision not disputed and bankruptcy notice issued – whether solicitors were correct creditor for the purpose of the bankruptcy notice – where High Court decision includes the phrase “Appeal dismissed with costs” – whether High Court Rules extend power of that court to taxation of costs on solicitor and own client basis – whether assessment of solicitor and own client costs should be made in High Court – whether costs certificate invalid and judgment obtained in Local Court void – whether provisions of Legal Profession Act and Legal Profession Rules 2004 (NSW) constitute a code – whether provisions of Legal Profession Act and Legal Profession Rules 2004 (NSW) inconsistent with provisions of High Court of Australia Act 1979 (Cth) and High Court Rules 2004 (Cth) and invalid – application dismissed. |
| Legislation: Legal Profession Act2004 (NSW) |
| Abigroup Ltd v Abignano (1992) 112 ALR 497 Batterham v QSR Ltd (2006) 225 CLR 237 Berowra Holdings Propriety Ltd v Gordon (2006) 225 CLR 364 Woolf v Snipe (1933) 48 CLR 677 |
| Applicant: | PETER JAMES BATTERHAM |
| First Respondent: | TERENCE LOUIS GOLDBERG TRADING AS TURNER FREEMAN |
| Second Respondent: | ARMANDO GARDIMAN TRADING AS TURNER FREEMAN |
| Third Respondent: | THADY BLUNDELL TRADING AS TURNER FREEMAN |
| File Number: | SYG 3219 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 13 February 2014 |
| Date of Last Submission: | 13 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P E King |
| Solicitors for the Applicant: | Robert Balzola and Associates |
| Counsel for the Respondents: | Mr Golledge |
| Solicitors for the Respondents: | Sally Nash & Co |
ORDERS
Application dismissed.
The applicant to pay the respondents’ costs, including any reserved costs, to be taxed if not agreed in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3219 of 2013
| PETER JAMES BATTERHAM |
Applicant
And
| TERENCE LOUIS GOLDBERG TRADING AS TURNER FREEMAN |
Respondent
| ARMANDO GARDIMAN TRADING AS TURNER FREEMAN |
Respondent
| THADY BLUNDELL TRADING AS TURNER FREEMAN |
Respondent
REASONS FOR JUDGMENT
There comes before the court the hearing of an amended application to set aside bankruptcy notice BN166203 issued on 18 October 2013 and for a declaration that the bankruptcy notice is defective and invalid. Although there are a number of…
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- Case
- [2014] FCCA 302
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the solicitors were the correct creditor for the purpose of the bankruptcy notice, and whether the High Court's power, as extended by its Rules, encompassed the taxation of costs on a solicitor and own client basis. Further questions arose regarding whether an assessment of solicitor and own client costs should have been made in the High Court, whether a costs certificate was invalid, and consequently, whether a judgment obtained in the Local Court was void. The court also considered whether the provisions of the *Legal Profession Act 2004* (NSW) and its associated Rules constituted a code, and if so, whether they were inconsistent with and therefore invalid by reason of the provisions of the *High Court of Australia Act 1979* (Cth) and the *High Court Rules 2004* (Cth).
Judge Raphael reasoned that the *Legal Profession Act 2004* (NSW) and its Rules did not operate to invalidate the costs assessment or the subsequent judgment. The court found that the provisions of the NSW Act and Rules were not inconsistent with the Commonwealth legislation and Rules governing the High Court. The assessment of costs, even on a solicitor-client basis, was considered valid, and the solicitors were therefore the correct creditor for the bankruptcy notice. The application to set aside the bankruptcy notice was dismissed.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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