Burt & C Pty Ltd (In Liquidation) - [2024] FedCFamC1A 203

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Burt & C Pty Ltd (In Liquidation) [2024] FedCFamC1A 203

Appeal from: C Pty Ltd (In Liquidation) & Burt [2024] FedCFamC1F 428

Appeal number: NAA 189 of 2024

File number: MLC 13359 of 2022

Judgment of: ALDRIDGE, AUSTIN & CURRAN JJ

Date of judgment: 30 October 2024

Catchwords: FAMILY LAW – APPEAL – COSTS – Application for costs following the discontinuance of the appeal – Where the respondent incurred expense preparing for the appeal – Where the parties on appeal are not parties to the marriage – Appellant to pay the respondents’ costs in a fixed sum.

Legislation: Corporations Act 2001 (Cth) Sch 2 – Insolvency Practice Schedule (Corporations) s 90-15

Cases cited: Wei & Xia (No 2) [2024] FedCFamC1A 138

Number of paragraphs: 11

Date of hearing: 30 October 2024

Place: Melbourne

The Appellant: Litigant in person

Solicitor for the Respondents: Serong Legal
ORDERS

NAA 189 of 2024
MLC 13359 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BURT (A PSEUDONYM)

Appellant

AND:
C PTY LTD (IN LIQUIDATION)

First Respondent

MR PQ IN HIS CAPACITY AS LIQUIDATOR OF C PTY LTD (IN LIQUIDATION)

Second Respondent

ORDER MADE BY:

ALDRIDGE, AUSTIN & CURRAN JJ

DATE OF ORDER:

30 OCTOBER 2024

THE COURT ORDERS THAT:
1.Leave is granted to RS Lawyers to withdraw from the proceedings.
2.The appellant is to pay the respondents’ costs fixed in the sum of $6,000 within 28 days.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burt & C Pty Ltd has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
ALDRIDGE J:

This is an application for costs by the respondent to the appeal. The appellant ended the appeal by filing a Notice of Discontinuance on 15 October 2024.
In mid-2019, C Pty Ltd, the first respondent, was placed into liquidation and Mr PQ, the second respondent, was appointed as its liquidator. On 27 February 2024, the second respondent rejected the appellant’s Proof of Debt in the winding up.
The appellant appealed against that dismissal pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) in Sch 2 to the Corporations Act 2001 (Cth) (“Corporations Act”).
On 26 June 2024,…

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.

Continue reading Burt & C Pty Ltd (In Liquidation)

Details

AGLC: Burt & C Pty Ltd (In Liquidation) [2024] FedCFamC1A 203
Case: [2024] FedCFamC1A 203
Decision Date: 30 October 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the appellant, Mr Burt, sought to appeal a decision made by the Family Court. The respondents to the appeal were C Pty Ltd (in liquidation) and Mr PQ, as the liquidator of C Pty Ltd. The dispute arose from proceedings related to family law, and the appellant's appeal was subsequently discontinued. Following the discontinuance, the respondents applied for costs, claiming they had incurred expenses in preparation for the appeal. The court had to determine whether the appellant should be liable to pay the respondents' costs for the time spent preparing for the appeal, despite the appellant and the respondents not being parties to the underlying marriage.

The primary legal issue before the court was whether the appellant should be ordered to pay the respondents' costs incurred in preparing for the appeal, despite the appellant discontinuing the appeal. The court had to consider the circumstances under which costs could be awarded following the discontinuance of an appeal, and whether the respondents' claim for costs was justified. The court also needed to consider the impact of the discontinuance on the parties' respective positions and the principles of fairness in awarding costs.

The court found that the respondents had incurred expenses in preparing for the appeal, which the appellant had discontinued. The court held that the appellant should bear the costs incurred by the respondents in preparing for the appeal. The court reasoned that the respondents had a legitimate interest in the proceedings, and the appellant's discontinuance of the appeal did not absolve them of the obligation to pay costs to the respondents. The court awarded the respondents costs in a fixed sum of $6,000, to be paid by the appellant within 28 days. The court also granted leave to RS Lawyers to withdraw from the proceedings.

The court's order provided that the appellant was to pay the respondents' costs in the fixed sum of $6,000 within 28 days. Additionally, the court granted leave to RS Lawyers to withdraw from the proceedings. The form of the order was subject to review to remedy any minor typographical or grammatical errors, or to record any variation to the order. This decision underscores the principle that parties who discontinue an appeal may still be liable for costs incurred by the other party in preparation for the appeal.

Orders

Orders of the court

NAA 189 of 2024

MLC 13359 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BURT (A PSEUDONYM)

Appellant

AND:

C PTY LTD (IN LIQUIDATION)

First Respondent

MR PQ IN HIS CAPACITY AS LIQUIDATOR OF C PTY LTD (IN LIQUIDATION)

Second Respondent

ORDER MADE BY:

ALDRIDGE, AUSTIN & CURRAN JJ

DATE OF ORDER:

30 OCTOBER 2024

THE COURT ORDERS THAT:

1. Leave is granted to RS Lawyers to withdraw from the proceedings.

2. The appellant is to pay the respondents’ costs fixed in the sum of $6,000 within 28 days.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 189 of 2024 MLC 13359 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BURT (A PSEUDONYM) Appellant
AND:	C PTY LTD (IN LIQUIDATION) First Respondent MR PQ IN HIS CAPACITY AS LIQUIDATOR OF C PTY LTD (IN LIQUIDATION) Second Respondent

Appeal from:	C Pty Ltd (In Liquidation) & Burt [2024] FedCFamC1F 428
Appeal number:	NAA 189 of 2024
File number:	MLC 13359 of 2022
Judgment of:	ALDRIDGE, AUSTIN & CURRAN JJ
Date of judgment:	30 October 2024
Catchwords:	FAMILY LAW – APPEAL – COSTS – Application for costs following the discontinuance of the appeal – Where the respondent incurred expense preparing for the appeal – Where the parties on appeal are not parties to the marriage – Appellant to pay the respondents’ costs in a fixed sum.
Legislation:	Corporations Act 2001 (Cth) Sch 2 – Insolvency Practice Schedule (Corporations) s 90-15
Cases cited:	Wei & Xia (No 2) [2024] FedCFamC1A 138
Number of paragraphs:	11
Date of hearing:	30 October 2024
Place:	Melbourne
The Appellant:	Litigant in person
Solicitor for the Respondents:	Serong Legal

ORDER MADE BY:	ALDRIDGE, AUSTIN & CURRAN JJ
DATE OF ORDER:	30 OCTOBER 2024