Comit Farm Produce Pty Ltd v Macks & Ors
[2006] FMCA 1476
•26 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMIT FARM PRODUCE PTY LTD v MACKS & ORS | [2006] FMCA 1476 |
| BANKRUPTCY − Where no appearance by second respondents − where default judgment previously awarded against second respondents. COSTS − Assessment − solicitor and client basis. |
| Applicant: | COMIT FARM PRODUCE PTY LTD |
| Respondent: | PETER IVAN MACKS AS TRUSTEE OF THE BANKRUPT ESTATE OF EFSTRATIOS VALAMIOS AND CONSTANTINA VALAMIOS |
| Second Respondent: | GEORGE VALAMIOS AND CHRIS VALAMIOS |
| File Number: | ADG291 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 September 2006 |
| Date of Last Submission: | 26 September 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 26 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Dalcin |
| Solicitors for the Applicant: | Minicozzi & Co |
| Respondent: | No Appearance |
ORDERS
The second respondents to pay $395 000.00 to the applicant.
The order of 5 July 2006 that the second respondents pay the applicant’s costs incurred in the proceedings on a solicitor and client basis be vacated.
The second respondents to pay the applicant’s costs to be taxed if not agreed on a solicitor and client basis pursuant to the Bankruptcy Rules 2006.
There be liberty to apply for the purposes of filing agreed notices of discontinuance between the applicant and the first respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG291 of 2003
| COMIT FARM PRODUCE PTY LTD |
Applicant
And
| PETER IVAN MACKS AS TRUSTEE OF THE BANKRUPT ESTATE OF EFSTRATIOS VALAMIOS AND CONSTANTINA VALAMIOS |
First Respondent
GEORGE VALAMIOS AND CHRIS VALAMIOS
Second Respondents
REASONS FOR JUDGMENT
These are the second set of proceedings referred to in my judgment in matter ADG 290 of 2003. The circumstances in which those proceedings were commenced and brought to finalisation in my orders of 5 July 2006, the circumstances of the service of those orders and the circumstances of the non-appearance of the respondents are all identical to proceedings ADG 291 of 2003.
The factual matrix in respect of the amounts paid by the applicant to the trustee are set out in detail in the separate submissions prepared by Mr Dalcin and filed by his instructing solicitor, Mr Minicozzi, which will be likewise kept with the papers. Having read those submissions, as well as the affidavits to which they refer, I am satisfied that it is appropriate that the damages which the second respondents were ordered to pay by virtue of my orders of 5 July 2006 should be assessed in the sum of $395 000.00, and that I should make orders that George Valamios and Chris Valamios pay the sum of $395 000.00 to the applicant, together with the costs of the proceedings, to be taxed, if not agreed, pursuant to the Bankruptcy Rules 2006.
In regard to the costs of these proceedings, I had on 5 July ordered that the second respondents pay the applicant the costs incurred by the applicant in the proceedings on a solicitor and client basis.
No objection to that order having been received from the second respondents, the order which I make in regard to costs in relation to these proceedings is that they should be taxed, if not agreed, on a solicitor and client basis, so that the earlier order is vacated and in its place shall be this order.
I make the additional order that there be liberty to apply for the purposes of filing agreed notices of discontinuance between the applicant and the first respondent.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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