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:

1. 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.

2. 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.

3. 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”).

4. On 26 June 2024, the primary judge dismissed the appeal. Whilst the Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction under the Corporations Act, the matter was before this Court because the winding up proceedings had been transferred to it by an order of the Supreme Court of Victoria made in late 2022.

5. A Notice of Appeal was filed on 24 July 2024 but later discontinued as I have said.

6. The respondent submitted that the grounds of appeal were such that the appeal could not succeed but such an enquiry veers towards considering its merits. It is sufficient to recognise that the respondent has been put to trouble and expense in dealing with an appeal which will not proceed.

7. The relevant parties to the appeal are not parties to the marriage. Had the appeal against the rejection of the Proof of Debt been heard in the Supreme Court of Victoria, the prima facie position is that costs follow the event. That is a consideration that favours the making of a costs order (see Wei & Xia (No 2) [2024] FedCFamC1A 138 at [35]).

8. These matters combine to persuade me that the appellant should pay the respondents’ costs, including the costs of this application which could have been avoided had the appellant agreed.

9. The appellant conceded a costs order was appropriate but took issue with aspects of the respondents’ Schedule of Costs. The respondents accepted some of these criticisms. In all of the circumstances, taking a broad approach, I am of the view that costs should be fixed in the sum of $6,000.

   AUSTIN J:

10. I agree with the presiding judge.

    CURRAN J:

11. I agree with the presiding judge.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Aldridge, Austin & Curran.

Associate:

Dated:       4 November 2024