Bendigo and Adelaide Bank Limited v Williamson
[2021] FedCFamC2G 41
•2 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Bendigo and Adelaide Bank Limited v Williamson [2021] FedCFamC2G 41
File number(s): SYG 377 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 2 September 2021 Catchwords: PRACTICE AND PROCEDURE – application to vary costs order to include an amount for counsel’s fees – whether costs order made because of a slip by successful party or by the Court or both – costs order varied to include an amount for counsel’s fees Legislation: Bankruptcy Act 1966 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 8 Date of hearing: 2 September 2021 Place: Sydney Solicitor for the Applicant: Ms F Reynolds of TurksLegal, by telephone The Respondent: Appeared in person, by telephone ORDERS
SYG 377 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BENDIGO AND ADELAIDE BANK LIMITED ACN 068 049 178
Applicant
AND: HUGH WILLIAMSON
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to r 17.05(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) order 3 of the orders made on 27 August 2021 is varied by substituting “$15,123.53” for “$10,623.53”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 27 August 2021 I pronounced orders which included an order that the estate of the respondent be sequestrated under the Bankruptcy Act 1966 (Cth). I also made an order that the applicant creditor’s costs be paid, and that those costs be set in the amount of $10,623.53. That amount was based on a bill of costs that was relied on by the applicant. I had assumed that the amount stated in that bill of costs was the total of all of the costs the applicant intended to claim. After I pronounced my orders and the orders were reduced into writing, those orders and my reasons for judgment were distributed to the parties by email.
On 27 August 2021, very shortly after, and perhaps immediately after, the written orders I made were distributed to the parties, the lawyer for the applicant sent an email to the court (copied to the respondent) the following effect:
I would be grateful if you could, please, inquire whether his Honour is prepared to consider an application to vary the costs order in this matter.
I note that his Honour fixed my client’s costs of the bankruptcy proceeding in the sum of $10,623.53. (3) When his Honour pronounced his orders this morning, I did not appreciate that the costs order was a fixed costs order.
Had I understood this to be the case, I would have asked whether his Honour would allow my clients counsel’s fees.
At the time the bill of costs was prepared, counsel’s fees had not been invoiced. They have since been invoiced (copy attached).
I am available to appear this morning if his Honour is prepared to hear an application to vary the fixed costs order to include counsel’s fees of $4500 ex-GST. This would result in the fixed costs order being varied to order that the applicant creditors’ costs be fixed in the sum of $15,123.53 and paid from the estate of the respondent.
This email was brought to my attention and, at my direction, my associate notified the parties that I would relist the matter before me. Initially I incorrectly directed my associate to list it at 9:30 am on 2 September 2021, but then, again at my direction, a further communication was made to the parties listing it before me at 2:00 pm on 2 September. The matter was called at 2:00 pm on 2 September 2021. Ms Reynolds appeared for the applicant and Mr Williamson appeared for himself. To the extent Mr Williamson needed leave to make whatever submission he wished to make, I granted him leave and, as will appear in a moment, Mr Williamson did make some submissions.
The application before me is not supported by any affidavit. That by itself, however, does not pose any difficulties. The first question I must ask is whether the application engages any rule of the Court. In my view, it plainly does. What has been submitted is that through some oversight, counsel’s fees have not been included in the costs order I made on 27 August 2021. It is the case that I did not consider when I made the order that costs be paid in the amount set out in the bill of costs to which I have referred whether it included counsel’s fees. It is something perhaps I ought to have observed; but I did not. So to the extent I have made an order not incorporating counsel’s fees, and – this is also relevant – it was the intention that it be claimed, there was an oversight on my part.
But mine was not the only oversight or accident. I pronounced my orders by telephone. The pronouncement of orders usually occurs with some rapidity where all that is done is my pronouncing my orders and stating words to the effect that the reasons for judgment supporting those orders are published; and I am not sure that this occurred on this occasion, but often, if not usually, I inform the parties that the sealed copy of the orders will be sent to the parties by email. Given that I know that the applicant did have counsel appearing at the hearing, and knowing the reasonable assumption to be made when lawyers appear before the court that it is done on the basis that they will be remunerated, it is open to me to find, and I do find, that counsel who appeared for the applicant did so on the basis that she would be paid her reasonable fees.
It is also reasonable to assume that when a successful party incurs legal fees, it expects to obtain an order for costs to permit such indemnity as the law allows for the costs the successful party has incurred. There was no application on the day for the inclusion of counsel’s fees. Ms Reynolds informed me, however, had she been aware that I had made a fixed costs order sooner than she did become aware, she wold have applied for an order that the costs should include an amount for counsel’s fees. As I said, that has not been put in any affidavit, but it is something I am willing to find from the circumstances themselves. Had I not laboured under the impression that $10,623.53 constituted the full amount of costs the applicant claimed, I would have, as is my practice, invited submissions about it. In any event, the explanation open to be inferred from the circumstances on which I delivered judgment is that Ms Reynolds failed to apply for an order that the costs include counsel’s fees because she was under a misapprehension as to what I did, and by the time she became aware of her misapprehension the matter had concluded. That inference is reinforced by the short time within which Ms Reynolds sought to have the matter relisted.
Mr Williamson did make a submission. He submitted that I should not accept as an explanation there not being a claim for counsel’s fees, and that is because there was – and these are my words, but I think my words accurately reflect the substance of the submission – some discomfort or point of embarrassment in the applicant actually wanting to seek such costs. That is, of course, a possibility, but having regard to the circumstances I have referred to, I do not accept that is the explanation for why counsel’s fees were not claimed by Ms Reynolds. I am, therefore, satisfied that I did not consider or make any order or determination in response to any claim for costs that the costs include counsel’s fees through an omission and probably a combined omission on my part and on the part of Ms Reynolds. That means that the Court has power then to vary the order for costs that I made on 27 August 2021 if I am otherwise satisfied it is appropriate to do so.
In my earlier judgment I found that the amount for costs claimed, $10,623, was a reasonable amount. The question is whether $4,500 is a reasonable amount for counsel’s fees. That amount appears to me to be well within the reasonable range counsel would charge for a matter of this nature. There is no question that counsel presented her submissions efficiently and properly. In those circumstances, I am satisfied that the orders I made on 27 August 2021 should be varied and, in particular, order 3 should be varied so as to include counsel’s fees of $4,500.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 September 2021
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