Doyle v Lewis (No 2) - [2023] FedCFamC2G 488

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doyle v Lewis (No 2) [2023] FedCFamC2G 488

File number(s): SYG 957 of 2022

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 2 June 2023

Catchwords: BANKRUPTCY – Costs – application for lump sum costs order – lump sum costs order made.

Legislation:
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 13.01

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05

Cases cited: Harrison v Schipp [2002] NSWCA 213

Division: General

Number of paragraphs: 16

Date of hearing: 2 June 2023

Place: Sydney

The Applicant: No appearance by, or on behalf of, the applicant

Counsel for the Respondent: Mr A Bailey

Solicitor for the Respondent: Carroll & O’Dea Lawyers
ORDERS

SYG 957 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PHILLIP WILLIAM DOYLE

Applicant

AND:
DARREN JOHN LEWIS

Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

2 june 2023

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs set in the amount of $102,321.25.
2.The respondent is to cause a sealed copy of these orders, together with r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), to be served on the applicant by sending those documents to the applicant’s address for service.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT

On 17 March 2023, on the basis of reasons for judgment I published on that day, I made an order dismissing an application to set aside a bankruptcy notice that was issued on the application of the respondent.[1] I also ordered on that day that the applicant pay the respondent’s costs. By an email sent to my Associate on 31 March 2023, the respondent requested that the proceeding be listed for the purpose of hearing an application for a lump sum costs order that the respondent wished to make. In response to that request, I caused to be listed for hearing before me on 21 April 2023 an application by the respondent for a lump sum costs order.
[1] Doyle v Lewis [2023] FedCFamC2G 205
The matter came before me on 21 April 2023. On that day counsel for the respondent, Mr Bailey, appeared. Mr Barbeliuk, with leave, appeared by telephone for the applicant. Mr Barbeliuk applied for an adjournment. The basis of that application was a foreshadowed application in the Court of Appeal of the Supreme Court of New South Wales for the appointment of a tutor for…

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 Doyle v Lewis (No 2)

Details

AGLC: Doyle v Lewis (No 2) [2023] FedCFamC2G 488
Case: [2023] FedCFamC2G 488
Decision Date

CaseChat Overview and Summary

In the case of Doyle v Lewis (No 2) [2023] FedCFamC2G 488, the matter before the Federal Circuit and Family Court of Australia (Division 2) was an application by the respondent for a lump sum costs order. The applicant, Phillip William Doyle, did not appear or present any argument in the hearing on 2 June 2023. The respondent, Darren John Lewis, was represented by Mr A Bailey. The case involved an application to set aside a bankruptcy notice that was dismissed on 17 March 2023. The court was required to decide on the appropriateness of making a lump sum costs order and the amount to be awarded to the respondent.

The court considered whether to proceed with the application for a lump sum costs order, given that the applicant may lack the capacity to prosecute the proceeding without a litigation guardian. Despite this uncertainty, the court decided that adjourning the matter to allow for further evidence on the applicant's capacity would not be appropriate, as it might lead to the indefinite continuation of the case with additional costs for the respondent. The court concluded that it was in the interests of justice to hear the application and make orders one way or the other. The court also examined the power and principles governing the determination of lump sum costs orders and found that it was appropriate to make such an order in this case.

The court assessed a lump sum for the respondent's costs, taking into account the evidence provided and the principles established in relevant case law. The court disallowed the uplift fee claimed by the respondent and some other minor amounts, arriving at a final lump sum costs order of $102,321.25 (inclusive of GST). The court also ordered that the respondent serve a sealed copy of the orders and the relevant rule on the applicant.

In summary, the Federal Circuit and Family Court of Australia (Division 2) granted the respondent's application for a lump sum costs order in the amount of $102,321.25 (inclusive of GST). The court found it appropriate to make such an order despite the applicant's potential lack of capacity to prosecute the proceeding and the absence of the applicant in the hearing. The court exercised its discretion and applied the relevant principles in assessing the lump sum costs, arriving at a fair and reasonable amount for the respondent's costs.

Orders