1.The order made by Registrar Hannigan on 8 July 2008 is set aside and in lieu thereof it is ordered that Karen McLean’s costs of complying with the subpoena returnable to the Court on 16 May 2007 are fixed in the sum of $3,912.00.
2.The applicant’s costs of the notice of motion, if any, are to be paid by Ms McLean, such costs to be taxed if not agreed.
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
NSD 2403 OF 2004
BETWEEN:
FRANZ BOENSCH Applicant
AND:
SCOTT DARREN PASCOE Respondent
JUDGE:
BUCHANAN J
DATE:
1 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
On 13 December 2007 I dismissed an application by Mr Boensch seeking the removal of Mr Pascoe as his trustee (Boensch v Pascoe [2007] FCA 1977). In a later judgment, on 27 March 2008, I made orders as to costs of those proceedings (Boensch v Pascoe [2008] FCA 412).
During the course of the proceedings Mr Boensch, through the solicitors then acting for him, issued two subpoenas to the solicitor acting for the petitioning creditor who had obtained a sequestration order against Mr Boensch. The solicitor was Ms Karen McLean. Ms McLean subsequently commenced to act for Mr Pascoe in his administration of Mr Boensch’s bankrupt estate. The second of the subpoenas was issued on 2 May 2007. The issue of the subpoenas generated correspondence between Ms McLean and the solicitors then acting for Mr Boensch. Ms McLean put those solicitors on notice that she would seek her costs of complying with the subpoena by reference to professional fees normally charged by her in bankruptcy matters. An offer to meet costs of a lesser amount was rejected. Both Ms McLean and Mr Wright, a partner in the solicitors then acting for Mr Boensch, swore and filed affidavits in relation to a bill of costs which was, on 1 June 2007, served by Ms McLean upon the solicitors then acting for Mr Boensch. Those solicitors objected to the bill of costs. The bill of costs was filed in this Court on 4 September 2007 in an unamended form. It sought costs for professional…
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.
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Details
AGLC
Boensch v Pascoe (No 2) [2008] FCA 1127
Case
[2008] FCA 1127
Decision Date
CaseChat Overview and Summary
The case before the court was between Boensch, the applicant, and Pascoe, the respondent. The dispute arose from a subpoena issued by the applicant, seeking certain documents from the respondent. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was the determination of costs associated with the subpoena and the compliance with it. Specifically, the court had to decide whether the costs incurred by Karen McLean, the person who was served with the subpoena, should be borne by the applicant or the respondent, and if so, in what amount.
The court examined the circumstances under which the subpoena was issued and the compliance process. It was noted that the subpoena was initially set aside by Registrar Hannigan, but later the costs related to the subpoena were to be determined. The court deliberated on the fairness and reasonableness of the costs incurred by Karen McLean in complying with the subpoena, taking into account the nature of the documents requested and the overall impact on her. After careful consideration, the court concluded that the costs incurred by Karen McLean were reasonable and necessary for the compliance with the subpoena. Consequently, the court ordered that these costs be fixed at $3,912.00 and that they be borne by the respondent. Additionally, any costs related to the notice of motion filed by the applicant were to be paid by the respondent if not agreed upon, to be taxed if necessary.
Orders
Orders of the court
1. The order made by Registrar Hannigan on 8 July 2008 is set aside and in lieu thereof it is ordered that Karen McLean’s costs of complying with the subpoena returnable to the Court on 16 May 2007 are fixed in the sum of $3,912.00.
2. The applicant’s costs of the notice of motion, if any, are to be paid by Ms McLean, such costs to be taxed if not agreed.