Charles v Parkinson

[2000] FCA 1824

FEDERAL COURT OF AUSTRALIA

Charles v Parkinson [2000] FCA 1824

EDWARD JOHN CHARLES AND KATHRYN ANN CHARLES v DAVID PARKINSON AND FIONA MARGARET PARKINSON (IN THE MATTER OF DAVID PARKINSON AND FIONA MARGARET PARKINSON)

N 7541 OF 1999

MOORE J
15 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7541 OF 1999

IN THE MATTER OF DAVID PARKINSON AND FIONA MARGARET PARKINSON

BETWEEN:	EDWARD JOHN CHARLES AND KATHRYN ANN CHARLES APPLICANTS
AND:	DAVID PARKINSON AND FIONA MARGARET PARKINSON RESPONDENTS
JUDGE:	MOORE J
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicants pay the costs of Mrs Fiona Parkinson of the proceedings after 16 June 2000.

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	N 7541 OF 1999

IN THE MATTER OF DAVID PARKINSON AND FIONA MARGARET PARKINSON

BETWEEN:	EDWARD JOHN CHARLES AND KATHRYN ANN CHARLES APPLICANTS
AND:	DAVID PARKINSON AND FIONA MARGARET PARKINSON RESPONDENTS

JUDGE:	MOORE J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 October 2000, I dismissed a creditor’s petition in so far as it concerned Fiona Parkinson: see [2000] FCA 1467. Mrs Parkinson now pursues an order that Edward Charles and Kathryn Charles (“the petitioning creditors”) pay her legal costs.

2. In my judgment of 20 October 2000, I said the following:

   “The question of the costs of the proceedings is a troubling one.  My present, preliminary views are these.  Even though Mrs Parkinson has succeeded in resisting a sequestration order being made (and, at least prima facie, she would be entitled to her costs), her success has depended, at least in substantial part, on me accepting that what appeared or purported to be her signature, was a signature placed on the Agreement by her husband.  While Mrs Parkinson should not necessarily have visited upon her the consequences of her husband's acts, there is a potential injustice if Mr and Mrs Charles have to pay all or even some of the costs of Mrs Parkinson in these proceedings. The ultimate result has been determined by a combination of two factors.  The first is the estate of Mr Parkinson being sequestrated in other proceedings and the second is the finding that Mrs Parkinson had not executed the Agreement (but that her husband may have done so fraudulently) and her initialling of it did not evince an intention to be bound by the guarantee.  In the circumstances, my present view is that the appropriate result is that each party should bear their own costs.  In expressing this preliminary view I am not intending to disturb any earlier order or agreement concerning costs.  However, if either party wishes to make further submissions on the question of costs, they should do so in writing within seven days of the publication of these reasons.”

3. Since making those observations written submissions have been filed by counsel for…