Crossman v Taylor - [2013] FCA 537

FEDERAL COURT OF AUSTRALIA
Crossman v Taylor [2013] FCA 537

Citation: Crossman v Taylor [2013] FCA 537

Parties: LYNETTE MARIE CROSSMAN v BRENDAN TAYLOR, WHITE MARINA PTY LTD, JACALI INVESTMENTS PTY LTD and PETER WALKER

File number: SAD 32 of 2010

Judge: LANDER J

Date of judgment: 4 June 2013

Catchwords: COSTS – application for indemnity costs

Legislation:
Bankruptcy Act 1966 (Cth), ss 120, 121
Corporations Act 2001 (Cth), s 233

Fair Trading Act 1987 (SA), s 87

Cases cited:
Crossman v Taylor (No 3) [2011] FCA 734

Taylor v Crossman [2011] FCAFC 139

Date of hearing: 10 April 2013

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 52

Counsel for the Plaintiff: The Plaintiff appeared in person

Counsel for the joint and several trustees of the bankrupt First Defendant’s estate: Mr P Britten-Jones

Solicitor for the joint and several trustees of the bankrupt First Defendant’s estate: Mellor Olsson Lawyers

Counsel for the Second and Third Defendants: The Second and Third Defendants did not appear

Counsel for the Fourth Defendant: Mr R Ross-Smith

Solicitor for the Fourth Defendant: Fox Tucker Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 32 of 2010

BETWEEN:
LYNETTE MARIE CROSSMAN
Plaintiff

AND:
BRENDAN TAYLOR
First Defendant

WHITE MARINA PTY LTD
Second Defendant

JACALI INVESTMENTS PTY LTD
Third Defendant

PETER WALKER
Fourth Defendant

JUDGE:

LANDER J

DATE OF ORDER:

4 JUNE 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application filed by the fourth defendant on 5 April 2013 (the indemnity costs application) be dismissed.
2.The fourth defendant’s costs of the proceeding, other than the costs of the indemnity costs application, be paid out of the bankrupt estate of the first defendant on a party/party basis.
3.The fourth defendant pay the costs of Robert William Naudi and Peter Ivan Macks, the joint and several trustees of the estate of the bankrupt first defendant, of the indemnity costs application on a party/party basis.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 32 of 2010

BETWEEN:
LYNETTE MARIE CROSSMAN
Plaintiff

AND:
BRENDAN TAYLOR
First Defendant

WHITE MARINA PTY LTD
Second Defendant

JACALI INVESTMENTS PTY LTD
Third Defendant

PETER WALKER
Fourth Defendant

JUDGE:

LANDER J

DATE:

4 JUNE 2013

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

On 5 April 2013, the fourth defendant, Mr Peter Walker, applied to the Court for orders that the plaintiff, Ms Lynette Crossman, pay his costs between 13 September 2011 and 15 March 2012 on an indemnity basis, and for an order that Mr Robert William Naudi and Mr Peter Ivan Macks, the joint and several trustees of the estate of Mr Brendan Taylor, who was the first defendant in the proceeding, pay Mr Walker’s costs from 16 March 2012 to 12 June 2012 also on an indemnity basis.
During the hearing of the application, Mr Walker abandoned his claim for costs against Ms Crossman and instead…

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 Crossman v Taylor

Details

AGLC: Crossman v Taylor [2013] FCA 537
Case: [2013] FCA 537
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, in the case of Crossman v Taylor, dealt with an application for indemnity costs filed by Peter Walker, the fourth defendant, against the plaintiff, Lynette Marie Crossman, and the joint and several trustees of the bankrupt first defendant, Brendan Taylor. The application was dismissed, and the court ordered that Walker's costs of the proceeding, other than the costs of the indemnity costs application, be paid out of Taylor's bankrupt estate on a party/party basis. Additionally, Walker was ordered to pay the trustees' costs of the indemnity costs application on a party/party basis.

The legal issues before the court involved the determination of whether Walker was entitled to indemnity costs from either Crossman or the trustees of Taylor's estate and, if so, on what basis. The court had to consider the circumstances surrounding Taylor's sale of his houseboats, the role of the trustees, and the impact of these transactions on Crossman's ability to recover on her judgment against Taylor.

In its reasoning, the court highlighted that Taylor had circumvented the freezing orders by defaulting on his chattel mortgage payments, leading to the sale of his houseboats to purchasers known to him. This conduct raised suspicions of an attempt to avoid the judgment debt. The trustees were entitled to make inquiries to determine whether the transactions contravened the Bankruptcy Act. Despite initially deciding not to bring proceedings, they later pursued actions against the purchasers, which were settled. The court rejected the contention that the trustees should pay indemnity costs due to their failure to immediately seek the discharge of the orders upon appointment, emphasizing that trustees must be allowed to make inquiries about the bankrupt's estate. The court concluded that Taylor's conduct led to Walker's involvement in the proceedings, and thus, the costs should be borne by Taylor's estate, while Walker was to pay the trustees' costs of the indemnity costs application.

Orders