Coleman v Veale (No 2)

[2023] FCA 1219

FEDERAL COURT OF AUSTRALIA

Coleman v Veale (No 2) [2023] FCA 1219   

File number:

NSD 333 of 2023

Judgment of:

KENNETT J

Date of judgment:

13 October 2023

Catchwords:

COSTS – Application relating to costs of successful application to set aside a bankruptcy notice – whether respondent should bear costs of jurisdiction issue which he did not raise or agitate – whether respondent should bear costs in relation to ground on which applicant was unsuccessful – whether applicant should otherwise be deprived of part of his costs because of lack of engagement in discussions or injustice resulting from deficiencies in bankruptcy notice prescribed form – whether costs should be awarded on a lump sum or percentage basis

Legislation:

Bankruptcy Act 1966 (Cth)
Civil Dispute Resolution Act 2011 (Cth) s 6

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Bankruptcy Regulations 2021 (Cth) s 12  

Cases cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Coleman v Gannaway [2023] FCA 224

Coleman v Veale [2023] FCA 1023

Michael Wilson & Partners Ltd v Porter (No 3) [2022] FCA 998

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

20

Date of last submissions:

21 September 2023

Date of hearing:

Determined on the papers

Counsel for the applicant:

T Smartt

Solicitor for the applicant:

Shiff & Company Lawyers

Counsel for the respondent:

J Mee

Solicitor for the respondent:

Campbell Paton and Taylor Solicitors

 

ORDERS

NSD 333 of 2023

BETWEEN:

DAVID COLEMAN

Applicant

AND:

ANDREW WILLIAM VEALE

Respondent

ORDER MADE BY:	KENNETT J
DATE OF ORDER:	13 OCTOBER 2023

THE COURT ORDERS THAT:

1.The respondent is to pay 85 percent of the applicant’s costs of the proceeding as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNETT J:

INTRODUCTION

1. The applicant sought an order setting aside a bankruptcy notice issued at the request of the respondent. I delivered judgment on 29 August 2023, granting the relief sought (Coleman v Veale [2023] FCA 1023). The parties filed written submissions on costs, followed by further written submissions in response to each other.

2. The applicant, having succeeded, sought his costs of the proceeding. The respondent sought an order requiring him to pay only 30 percent of the applicant’s taxed costs.

3. Three issues arose in the substantive proceeding.

4. First, when the originating application was accepted for filing, the Registry drew attention to the fact that that acceptance had occurred outside the relevant limitation period. There was therefore, potentially, a question as to the competency of the application.  The applicant addressed this issue (the jurisdiction point) in submissions. The respondent did not address it, apart from noting that the Court would need to be satisfied as to its jurisdiction. I concluded that the application had been filed within time and the Court had jurisdiction: at [15].

5. Secondly, by ground 1 of the…