Brott v Grey

[2000] FCA 1836

FEDERAL COURT OF AUSTRALIA

Brott v Grey [2000] FCA 1836

PRACTICE AND PROCEDURE - Costs - should the costs follow the event - whether there are any special circumstances to justify another order as to costs.

Cummings v Lewis (1993) 41 FCR 559 Foll
Re Williamson;  Ex parte Wearne (1980) 43 FLR 305 Cited
Re Tripodi Ex parte Col Johnson Pty Ltd (Unreported, 22 January 1987, Burchett J (W219 of 1984) para 61) Appr
Scobie v Deputy Commissioner of Taxation (1995) 95 ATC 4525 Cited

ISSAC ALEXANDER BROTT v MICHAEL JOHN GREY AND PAUL DESMOND SWEENEY
QG7286 OF 1998

COOPER J
BRISBANE
14 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7286 OF 1998

BETWEEN:

ISSAC ALEXANDER BROTT
APPLICANT

AND:

MICHAEL JOHN GREY
FIRST RESPONDENT

PAUL DESMOND SWEENEY
SECOND RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

14 DECEMBER 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The order as to costs made on 29 November 2000 take effect forthwith.

2.The applicant pay the respondents’ costs of and incidental to the further issue of costs and of the appearance today.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7286 OF 1998

BETWEEN:

ISSAC ALEXANDER BROTT
APPLICANT

AND:

MICHAEL JOHN GREY
FIRST RESPONDENT

PAUL DESMOND SWEENEY
SECOND RESPONDENT

JUDGE:	COOPER J
DATE:	14 DECEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 29 November 2000 the applicant’s application to set aside a deed of arrangement dated 14 May 1992 was dismissed.  At the request of the applicant I stayed the costs order made against the applicant to enable him to make submissions as to why the order should not be made, and, what orders as to costs should be made in the circumstances.

2. The applicant submits that he succeeded on the principal substantive question, which was whether the deed of arrangement was entered into in accordance with Part X of the Bankruptcy Act 1966 (Cth). His application was dismissed for discretionary considerations. In those circumstances, he submits that he should recover his costs from the debtor or at worst there ought to be no order as to costs. He further submits that the trustee under the deed was not a party to the application. Rather, he submits, the trustee proceeded to involve himself in the application when he should have left the matter to the debtor and merely abided the order of the Court.

3. Finally, the applicant submits that the reserved costs should be considered on their merits.  He submits that the reserved costs of the adjournments on 2 October 1998 and 30 November 1998, and of the attendances relating to the debtor’s defaults, should be ordered against the debtor in favour of the applicant.

4. In Cummings v Lewis (1993) 41 FCR 559, as a member of a Full Court of this Court, I set out the nature of the discretion of a judge of this Court to award costs. I said…