Conlan v Mladenis - [2008] FMCA 1214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONLAN v MLADENIS

[2008] FMCA 1214

BANKRUPTCY – Costs – Creditor’s Petition – Order for Judgment Debt set aside.

Bankruptcy Act 1966
Federal Magistrates Court Act 1999
Federal Court of Australia Act 1976
Federal Proceedings (Costs) Act 1981

Hogg v J Isherwood-Hicks Pty Ltd [1992] NTSC 41; (1992) 108 FLR 62
Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50
Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825; (2006) 233 ALR 81
Brunninghausen v Glavanics [1998] FCA 230

Applicant:

GERARD ANTHONY CONLAN

Respondent:

CHRIS MLADENIS

File Number:

MLG 476 of 2005

Judgment of:

Riethmuller FM

Hearing date:

17 April 2008

Date of Last Submission:

17 April 2008

Delivered at:

Melbourne

Delivered on:

29 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Turner

Solicitors for the Applicant:

Law 554

Counsel for the Respondent:

Ms Marks

Solicitors for the Respondent:

Tanya Cirkovic & Associates

ORDERS

The applicant be granted a costs certificate in relation to the costs of the re-hearing on 17 April 2008 pursuant to Section 8 of the Federal Proceedings (Costs) Act 1981;
The respondent be granted a costs certificate in relation to the costs of the re-hearing on 17 April 2008 pursuant to Section 8 of the Federal Proceedings (Costs) Act 1981;
The respondent pay the appellant’s costs of the appeal to the Federal Court;
The respondent be granted a costs certificate in relation to the costs of the appeal pursuant to Section 6 of the Federal Proceedings (Costs) Act 1981 with respect to the costs payable to the applicant and the respondent’s own costs;
The respondent pay the applicant’s costs of the proceedings from the filing of the Creditor’s Petition (including drawing and engrossing the petition) (other than the costs dealt with in orders 1-4 above).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 476 of 2005

GERARD ANTHONY CONLAN

Applicant

And

CHRIS MLADENIS

Respondent

REASONS FOR JUDGMENT

This application concerns the question of costs in bankruptcy proceedings that were pending between the parties. The question was first considered by a Registrar of the Federal Magistrates Court, and was then the subject of a de novo hearing before another Federal Magistrate. Following a successful appeal before Sundberg J the matter was remitted to the Federal Magistrates Court for re-hearing in accordance with his Honour's reasons, together with a remittal of the question of costs with respect to the appeal.
The matter arose from a dishonoured cheque provided to a law firm, Law 554, in June of 2004. The cheque was a business cheque from a business conducted by the respondent and his son. On 14 July 2004 the applicant, trading as Law 554, brought proceedings in the Magistrates Court of Victoria. On 10 September 2004 the applicant obtained a default judgment against the respondent for the amount of the cheque together with interest and costs.
On 17 September 2004 the applicant wrote to the respondent advising of the judgment. On 27 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conlan v Mladenis

Details

AGLC: Conlan v Mladenis [2008] FMCA 1214
Case: [2008] FMCA 1214
Decision Date: 29 August 2008

CaseChat Overview and Summary

The parties to this case were Conlan and Mladenis. The nature of the dispute was financial, involving a re-hearing of a matter before the Federal Court of Australia, which had initially concluded on 17 April 2008. The dispute also extended to the costs associated with the re-hearing and the subsequent appeal to the Federal Court. The Federal Court was tasked with deciding on the allocation of costs between the parties.

The legal issues before the court included the proper allocation of costs for the re-hearing, the appeal to the Federal Court, and the proceedings from the filing of the Creditor's Petition. The court had to determine whether the costs certificates should be granted to both parties, who should bear the financial burden of these costs, and how to appropriately distribute the financial responsibility between Conlan and Mladenis.

The court's reasoning was grounded in the Federal Proceedings (Costs) Act 1981. It concluded that both parties should be granted a costs certificate in relation to the costs of the re-hearing, and that the respondent should bear the costs of the appeal to the Federal Court. Additionally, the respondent was required to pay the applicant’s costs of the proceedings from the filing of the Creditor’s Petition, excluding those costs already addressed in the previous orders. The court's decision reflected a careful consideration of the statutory provisions and the specific circumstances of the case, ensuring that the financial implications were fairly allocated between the parties.

The final orders of the court mandated that the respondent pay the costs of the re-hearing, the appeal, and the proceedings from the filing of the Creditor’s Petition, while also ensuring that the respondent received a costs certificate for their own costs and the costs payable to the applicant. This comprehensive approach addressed the financial aspects of the case in a manner that adhered to the relevant statutory framework.

Orders

Orders of the court

The applicant be granted a costs certificate in relation to the costs of the re-hearing on 17 April 2008 pursuant to Section 8 of the Federal Proceedings (Costs) Act 1981;

The respondent be granted a costs certificate in relation to the costs of the re-hearing on 17 April 2008 pursuant to Section 8 of the Federal Proceedings (Costs) Act 1981;

The respondent pay the appellant’s costs of the appeal to the Federal Court;

The respondent be granted a costs certificate in relation to the costs of the appeal pursuant to Section 6 of the Federal Proceedings (Costs) Act 1981 with respect to the costs payable to the applicant and the respondent’s own costs;

The respondent pay the applicant’s costs of the proceedings from the filing of the Creditor’s Petition (including drawing and engrossing the petition) (other than the costs dealt with in orders 1-4 above).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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