Collins v Djunaedi (No 2)

[2016] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

COLLINS & ANOR v DJUNAEDI & ORS (No 2)

[2016] SASCFC 63

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)

23 May 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

BANKRUPTCY - ADMINISTRATION OF PROPERTY - PROOF OF DEBTS - WHAT DEBTS PROVABLE - COSTS

Costs in appeal against a decision of a Judge of the District Court.

The respondents claim they paid money to the appellants in reliance upon certain pleaded misrepresentations.

Reasons for judgment previously delivered dismissing the appeal. The Court held that summary judgment was correctly entered in the District Court as there was no reasonable basis to defend the claim and that the Judge was correct in not continuing a stay of the proceedings.

The appellants were subsequently declared bankrupt. The respondents sought an order for costs of the appeal.

Held per Kourakis CJ (Stanley and Parker JJ agreeing):

1.    Bankruptcy is not an impediment in making a costs order.

2.    The appellant to pay the respondents costs.

Bankruptcy Act 1966 (Cth) s 58, referred to.
Collins & Anor v Djunaedi & Ors [2016] SASCFC 48; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, considered.

COLLINS & ANOR v DJUNAEDI & ORS (No 2)
[2016] SASCFC 63

Full Court:  Kourakis CJ, Stanley and Parker JJ

1. THE COURT:          On 11 May 2016 the Court dismissed the appellants’ appeal against summary judgment entered against them in an action in which the respondents had claimed damages for fraud and misrepresentation.[1]

   [1]    Collins & Anor v Djunaedi & Ors [2016] SASCFC 48.

2. When judgment was delivered the appellants did not appear.  The Court was informed by the appellants’ former solicitor and by the respondents’ counsel that the appellants were now bankrupt.  The respondents sought costs.  The Court invited submissions on whether the order should be made.  The Court was referred to Foots v Southern Cross Mine Management Pty Ltd.[2]

   [2] (2007) 234 CLR 52.

3. The Court is satisfied that s 58(3) of the Bankruptcy Act 1966 (Cth) does not apply to the application for the costs of these proceedings. The Court orders that the appellants pay the respondents’ costs.