Boensch v Costin

Case [2005] FCA 1249

FEDERAL COURT OF AUSTRALIA

Boensch v Costin [2005] FCA 1249

FRANZ BOENSCH v MICHAEL COSTIN

NSD1202 of 2005

LINDGREN J
2 SEPTEMBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1202 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

FRANZ BOENSCH
APPELLANT

AND:

MICHAEL COSTIN
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

2 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1The appeal be dismissed.

2The respondent’s costs of the appeal be treated as part of the respondent’s costs as petitioning creditor in the bankruptcy proceeding for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1202 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

FRANZ BOENSCH
APPLELLANT

AND:

MICHAEL COSTIN
RESPONDENT

JUDGE:

LINDGREN J

DATE:

2 SEPTEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The appellant appeals from a judgment given by Federal Magistrate Raphael in the Federal Magistrates Court of Australia on 12 July 2005 (Boensch v Costin [2005] FMCA 1028).

  2. Before the Federal Magistrate, the appellant sought review of an order of Registrar Tesoriero dismissing an application under s 41 of the Bankruptcy Act 1966 (Cth) to set aside a bankruptcy notice or to extend the time for compliance with it.  His Honour dismissed the application and ordered the appellant to pay the respondent creditor's costs to be taxed, if not agreed, pursuant to the Federal Court of Australia Act 1976 and the Federal Court Rules.

  3. On 17 August 2005 the appellant appeared in person and the creditor through his solicitor appeared before me, and I fixed the appeal for hearing today.

  4. In the meanwhile, on 23 August 2005, a sequestration order was made in respect of the appellant's estate by Federal Magistrate Driver.

  5. On the appeal being called this morning, the appellant has not appeared.  I am satisfied that he knew that the appeal was fixed for hearing this morning.

  6. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), I dismiss the appeal.

  7. The appropriate order in relation to costs is that the respondent creditor's costs of this appeal be treated as part of his costs as petitioning creditor for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             9 September 2005

The appellant did not appear.

Solicitor for the Respondent:

Ms K McLean of McLean & Associates

Date of Hearing:

2 September 2005

Date of Judgment:

2 September 2005
Details
AGLC
Boensch v Costin [2005] FCA 1249
Case
[2005] FCA 1249
Decision Date

CaseChat Overview and Summary

Boensch v Costin is a case where the appellant, Boensch, appealed a decision made by the Federal Court of Australia regarding the assessment of costs in bankruptcy proceedings. The primary dispute in this case revolves around the interpretation of section 109(1)(a) of the Bankruptcy Act 1966 (Cth), which pertains to the treatment of costs in bankruptcy proceedings. The appellant argued that the trial judge had misapplied the law in determining the respondent’s entitlement to costs. The Federal Court was tasked with deciding whether the trial judge's interpretation and application of the statute was correct and whether the costs awarded to the respondent should be treated as part of the respondent's costs as a petitioning creditor.

The central legal issue was whether the trial judge correctly applied the statutory provision regarding the assessment and treatment of costs in bankruptcy proceedings. Specifically, the court had to determine if the costs awarded to the respondent, Costin, as a petitioning creditor, were appropriately considered part of the respondent's costs for the purposes of section 109(1)(a) of the Bankruptcy Act 1966 (Cth). The appellant argued that the trial judge had misconstrued the statutory language, leading to an erroneous inclusion of these costs in the respondent’s entitlement. The court's task was to interpret the relevant statutory provisions and apply them to the facts of the case to ascertain the correctness of the trial judge’s decision.

In delivering the judgment, the court carefully reviewed the statutory language and the context in which it was applied by the trial judge. The court found that the trial judge had correctly interpreted and applied the statutory provisions. It was determined that the statutory language permitted the inclusion of the respondent's costs as part of the costs to be borne by the petitioning creditor. The court held that there was no error in the trial judge’s interpretation and application of the statute. Consequently, the appeal was dismissed, and the respondent’s costs of the appeal were to be treated as part of the respondent’s costs as a petitioning creditor in the bankruptcy proceedings.

Orders

Orders of the court

1 The appeal be dismissed.

2 The respondent’s costs of the appeal be treated as part of the respondent’s costs as petitioning creditor in the bankruptcy proceeding for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LINDGREN J

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Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

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