Fewin Pty Ltd v Prentice (No 2)

Case [2017] FCA 102


FEDERAL COURT OF AUSTRALIA

Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102

File number: NSD 25 of 2016
Judge: MARKOVIC J
Date of judgment: 16 February 2017
Catchwords:

COSTS – where the applicants enjoyed substantial success – whether the court should depart from the rule that costs follow the event – respondent ordered to pay a proportion of the applicants’ costs

BANKRUPTCY AND INSOLVENCY – trustee’s right to indemnity for litigation costs – whether trustee should be disentitled from relying on indemnity

Legislation:

Bankruptcy Act 1966 (Cth) s 32

Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:

Adsett v Berlouis (1992) 37 FCR 201

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (No 2) [2010] FCA 277

Maxwell-Smith v Donnelly (No 2) [2011] FCA 259

New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski (No 2) [2011] FCAFC 152

Pantzer v Wenkart (2006) 153 FCR 466

Principal Strategic Options Pty Ltd, in the matter ofCoshott v Coshott [2001] FCA 664

Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370

Re Beddoe; Downes v Cottam [1893] 1 Ch 547

Date of hearing: Determined on the papers
Date of last submissions: 2 December 2016
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicants: Mr A P Cheshire SC
Solicitor for the Applicants: Comino Prassas Solicitors
Counsel for the Respondent: Mr J T Johnson
Solicitor for the Respondent: O’Neill Partners Commercial Lawyers

ORDERS

NSD 25 of 2016
BETWEEN:

FEWIN PTY LIMITED ACN 051 132 453

First Applicant

RONALD MICHAEL COSHOTT
Second Applicant

AND:

MAXWELL WILLIAM PRENTICE

Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

16 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The respondent is to pay 70% of the applicants’ costs of the proceeding as agreed or taxed.

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


REASONS FOR JUDGMENT

MARKOVIC J:

  1. On 20 October 2016, I made declarations and gave judgment in Fewin Pty Ltd v Prentice [2016] FCA 1239 (Fewin v Prentice).  The parties have now filed and served submissions going to the issue of costs of the proceeding and have consented to the Court determining that issue on the papers without the need for an oral hearing.  

  2. The declarations made in Fewin v Prentice related to the conduct of a meeting of creditors of the former bankrupt, Robert Coshott, that took place on 16 December 2015 (Creditors’ Meeting).  In particular, declarations were made that:

    (1)the respondent, Mr Prentice, who is the trustee of the bankrupt estate of Robert Coshott (Coshott Estate), was not entitled to vote on the election of the person to preside at the Creditors’ Meeting as proxy for Stephen Michael Barry and Martin Pearce Board (Messrs Barry and Board);

    (2)the proxies given by the Australian Taxation Office (ATO

Continue reading Fewin Pty Ltd v Prentice (No 2)

Sign in free to access the full text

Details
AGLC
Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102
Case
[2017] FCA 102
Decision Date

CaseChat Overview and Summary

The case of Fewin Pty Ltd v Prentice (No 2) involved the applicants, Fewin Pty Ltd and others, seeking a ruling on the issue of costs against the respondent, Mr Prentice. The applicants, who had achieved substantial success in the proceedings, argued that the court should deviate from the usual rule that costs follow the event. The applicants also sought to establish the trustee's entitlement to an indemnity for litigation costs from the bankrupt estate and whether the trustee should be precluded from claiming such indemnity.

The court considered the principle that costs should generally follow the event, but recognised that this rule can be departed from in exceptional circumstances. The applicants' substantial success and the fact that the trustee had already been indemnified for his costs, provided a compelling reason to adjust the usual costs order. The court found that Mr Prentice was entitled to rely on the indemnity from the bankrupt estate for his litigation costs, and thus should contribute towards the applicants' costs.

The court concluded that the applicants' significant success and the trustee's prior indemnity justified a departure from the usual rule on costs. Consequently, the court ordered that the respondent pay 70% of the applicants' costs of the proceeding, as agreed or taxed. This decision ensures that the applicants are adequately compensated for their success, while also recognising the trustee's entitlement to an indemnity from the bankrupt estate.

ORDERS:
1. The respondent is to pay 70% of the applicants’ costs of the proceeding as agreed or taxed.

Orders

Orders of the court

1. The respondent is to pay 70% of the applicants’ costs of the proceeding as agreed or taxed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To put the matter beyond doubt, it follows that Mr Prentice is entitled to rely on the indemnity out of the bankrupt estate for his own costs of the proceeding or in relation to any liability to the Fewin Parties.CONCLUSION In light of the views I have reached I will order that the respondent is to pay 70% of the applicants’ costs of the proceeding as agreed or taxed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.