Baycorp Collections PDL (Australia) Pty Ltd v GOSH (No 3)

[2016] FCCA 627

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD v GOSH (NO. 3) [2016] FCCA 627

Catchwords:
BANKRUPTCY – Costs – practice and procedure – application for adjournment of hearing of application for costs made by creditor – whether reasonable explanation given for debtor not being in a position to proceed with the application for costs – whether there would be any utility in granting adjournment – adjournment refused.

Legislation:

Bankruptcy Act 1966 (Cth), pt.IX

Federal Circuit Court Rules 2001 (Cth), rr. 21.02, 21.02(2)

Applicant: BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LIMITED

Respondent: RATNA GOSH

File Number: SYG 235 of 2015

Judgment of: Judge Manousaridis

Hearing date: 15 March 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kaufmann

Solicitors for the Applicant: Baycorp Legal

No appearance behalf of or by the first, second or third supporting creditors

Counsel for the Fourth Supporting Creditor: Mr M W E Maconachie

Solicitors for the Fourth Supporting Creditor: Higgins & Dix

The respondent appeared in person

ORDERS

1. The application for an adjournment is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LIMITED

Applicant

And

RATNA GOSH

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 29 January 2016 I made an order setting down for hearing at 10.15 am on 15 March 2016 an application by the applicant creditor (Baycorp) for costs.  I also made directions for the filing of material in relation to that application.  In particular, I directed that Baycorp file all evidence on which it intends to rely by 19 February 2016, and that the respondent, Dr Ghosh, file all material on which she intends to rely by 11 March 2016.

2. Shortly after 10.15 am today, when the matter was called, there was no appearance by Dr Ghosh.  In her absence, I decided to proceed and Baycorp, through its counsel, Mr Kaufmann, proceeded to read two affidavits in support of Baycorp’s costs.  One of those affidavits was the affidavit made by David Wilkinson made on 17 February 2016.  That affidavit attached a bill of costs which itemised various matters and attached to each matter an amount.  The amount was either calculated by reference to the time spent on the matter identified, with an hourly rate of $250 being applied, and, in relation to other matters, amounts taken from the Federal Court of Australia schedule of costs were applied to them.  In addition to the bill of costs, there is attached various documents evidencing disbursements, the single largest disbursement being counsel’s fees.  The overall amount of the costs claimed in the bill of costs is $35,091.91. Mr Kaufmann indicated to me that, although the amount claimed in the bill of costs was $35,091, Baycorp was prepared to submit to a costs order of 75% of that amount, exclusive of GST.  So calculated, the amount to which Mr Kaufmann said Baycorp would be willing to submit was $23,925. 

3. In the course of my delivering a judgment on the application, Dr Ghosh made an appearance. I decided to interrupt the delivery of that judgment and, ultimately, decided not to proceed with that judgment. The reason is that Dr Ghosh has applied for an adjournment.  She submitted that she was unable to comply with the timetable because she had encountered computer difficulties.  She also said that she only received the bill of costs on 10 March 2016 or 11 March 2016 and, because of commitments in other proceedings, she has been unable to deal with that material apart from satisfying herself that the amount claimed in the bill of costs was a very large amount.  She also said that her barrister was not available to appear on her behalf today, and that she had received advice that she should apply to the Court to have the matter assessed by a specialist cost assessor.  Dr Ghosh also said that she wished to have an adjournment to give her an opportunity to make arrangements to enter into a Part IX agreement, and also to have an opportunity for her to pursue appeals. 

4. In considering applications for an adjournment, it is necessary to consider at least two factors.  One is the reasons why the party seeking the adjournment is not in a position to proceed with the matter as originally fixed, and the second is whether there would be any utility in granting the adjournment.

5. As to the reasons Dr Ghosh has given, none of them, in my opinion, are reasonable or adequate.  First, she has known since 29 January 2016 that this application would be heard today.  That gave her an adequate opportunity to ensure that her counsel would be available for the hearing today or, if he was not available for the hearing, for her to have obtained alternative counsel or, indeed, had she acted promptly, to even have applied to obtain a different day to suit her counsel’s availability.  None of those matters were done by Dr Ghosh.

6. Even if I accept – and nothing I say here should be taken as acceptance by me – that her computer system crashed, Dr Ghosh was aware that, under the orders I made on 29 January 2016, Baycorp was required to submit material by 19 February 2016.  It was open to her by that date to make inquiries of Baycorp’s solicitors about the filing of material by it. In fact, this is what Dr Ghosh did, not on 17 February 2016, but on 10 March 2016.  On that day, she sent an email to the solicitor for Baycorp requesting that Baycorp “urgently email me the bill and itemised invoice you are seeking to be paid in the FCC (before 3 pm today)”.

7. Now, I know that Dr Ghosh has not given sworn evidence, and has not been cross-examined, and I am proceeding on this application on the assumption that what she tells me is true, but it is quite noticeable that, in her email, there is a reference to “the bill and itemised invoice” that Baycorp is seeking to be paid.  One wonders how it is that she was aware that there was a bill and itemised invoice that Baycorp was seeking to have paid if she had not already been provided with it.  In any event, I draw no adverse inferences from it because, as I said, Dr Ghosh has not given sworn evidence, and she has not been cross-examined. 

8. As for her saying that she needs an adjournment so that she may have an opportunity to enter into a Part IX agreement, proceeding with the hearing of Baycorp’s application for costs today should not prevent Dr Ghosh from taking whatever steps are necessary to take for her to enter into a Part IX agreement.  Similarly, proceeding with the hearing for costs today should have no bearing on her ability to proceed with the appeal she said she is conducting. 

9. I then refer to her submission that, given the size of the bill, the matter should proceed by way of an assessment by an appropriately qualified cost assessor. In a not insignificant way, that submission, in effect, cavils with the orders I made on 29 January 2016, where it was clear the question of costs and the assessment of those costs would be determined by me, not by a cost assessor. It is, therefore, not a reason for me to adjourn that application on the ground that it should be referred to a cost assessor when the order I made on 29 January 2016 was that I would assess those costs. There is no question that the Court does have power to order costs. That power is to be found in r.21.02 of the Federal Circuit Court Rules 2001 (Cth). Subrule (2) of that rule provides that “In making an order for costs in the proceedings, the Court may” among other things, “set the amount of the costs”.

10. I then turn to the question of utility.  That, of course, is difficult to assess, given the absence of any material from Dr Ghosh as to whether the granting of an adjournment will result in an outcome which will be more favourable to Dr Ghosh than it would otherwise be if I were to proceed today.  The only submission Dr Ghosh has made that could be relevant to that question is that the amount of costs is large, and is large by reference to the costs order that was made by this Court in connection with the bankruptcy proceedings last year or so, and on the basis of which the bankruptcy notice in this proceeding has been issued.  The fact that the amount claimed is larger than the amount ordered does not by itself afford a reasonable basis for saying the amount claimed here is large or unusually large, or is of such amount as requires an approach different from the one which I proposed I would take by making the order I did on 29 January 2016 that I assess the costs.  In particular, there is no evidence that the proceedings that resulted in a costs order by this Court followed the lengthy appearances that characterise this present proceeding, which I have summarised in my earlier reasons for judgment.  In the event, I am not satisfied there would be any utility in adjourning this application for costs. 

11. For those reasons, therefore, the application for an adjournment is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 30 March 2016