Caratti v Weininger (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARATTI v WEININGER (No.2)  [2007] FMCA 783

BANKRUPTCY – Creditor’s petition – respondent debtor’s opposition to creditor’s petition – considerations relevant to review – creditor’s petition dismissed.

COSTS – Indemnity costs – application that the costs should be paid on an indemnity basis – application dismissed.

Federal Court Rules (Cth), O.23.11, 62
Federal Magistrates Act 1999 (Cth), ss.79(2), 79(3)
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.13.01(1)

Calderbank v Calderbank [1975] 3 ALL ER 333
Colgate-Palmolive v Cussons (1993) 46 FCR 225
De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77
Greyhound Pioneer Australia Ltd v Pioneer Motor Service Ltd [1999] FCA 474
Greyhound Pioneer Australia Ltd v Pioneer Motor Service Ltd [1999] FCA 474
Leichhardt Municipal Council v Green [2004] NSWCA 341
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Sanko Steam Shop Co Ltd & Anor v Sumitomo Australia Ltd NoG082 of 1991 Fed No 22/96 (unreported)

Applicant Creditor: REBECCA CARATTI

Respondent Debtor: MARTIN WEININGER

File number: SYG2660 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 6 February 2007

Date of Last Submission: 1 May 2007

Delivered at: Sydney

Delivered on: 24 May 2007

REPRESENTATION

Solicitors for the Applicant Creditor: Mr L Rupell of Milne Berry & Berger Solicitors

Solicitors for the Respondent Debtor: Mr M Forsyth of Abadee Dresdner & Freeman

ORDERS

Further to the orders made by the Court on 2 March 2007:

1. The applicant creditor pay the respondent debtor’s costs of these proceedings on a party and party basis, and if not agreed, to be taxed in accordance with Order 62 of the Federal Court Rules (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2660 of 2006

REBECCA CARATTI

Applicant

And

MARTIN WEININGER

Respondent

REASONS FOR JUDGMENT

The proceedings

1. By judgment dated 28 March 2007, I made orders dismissing the applicant creditor’s petition filed on 19 September 2006 and ordered the applicant creditor to pay the respondent debtor’s costs.  The respondent’s solicitor made an application that the costs should be paid on an indemnity basis.  I gave the parties an opportunity to provide me with written submissions concerning indemnity costs.

Relevant legislation

1. Section 79(2) of the Federal Magistrates Act 1999 (Cth) (“the Act”) provides:

   (2)The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   Section 79(3) of the Act provides:

   (3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.

2. Rule 21.02(2) of the Federal Magistrate Court Rules 2001 (Cth) provides:

   (2) In making an order for costs in a proceeding, the Court may:

   (a) set the amount of the costs; or

   (b) set the method by…