Fordyce v Wong

[2017] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORDYCE v WONG [2017] FCCA 87

Catchwords:
BANKRUPTCY – Costs – Application for costs – matter settled before final hearing – whether costs should follow the event.

Legislation:

Bankruptcy Act 1966, ss.32, 41

Federal Circuit Court of Australia Act 1999 (Cth), s.79
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.13.01

Cases cited:

Yates Property Corp Pty Ltd v John Boland & Ors [1997] FCA 760
Re Kimberley John Hughes v Western Australian Cricket Association & Ors [1986] FCA 382
Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Cummings v Lewis,  Wilcox J, Federal Court of Australia, 29 May 1992, unreported
Re Skase ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509

Applicant: PAUL MERVYN FORDYCE

Respondent: WILSON KIM LING WONG

File Number: SYG 1184 of 2016

Judgment of: Judge Nicholls

Hearing date: Matter decided on the papers

Date of Last Submission: 5 August 2016

Delivered at: Sydney

Delivered on: 25 January 2017

REPRESENTATION

Solicitors for the Applicant: Mr P Fordyce of Pmf Legal Pty Limited

Counsel for the Respondent: Mr D Ratnam

Solicitors for the Respondent: HWL Ebsworth Lawyers

ORDERS

1. The applicant in the substantive proceedings pay the costs of the respondent in the proceedings as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1184 of 2016

PAUL MERVYN FORDYCE

Applicant

And

WILSON KIM LING WONG

Respondent

REASONS FOR JUDGMENT

1. On 28 April 2016 the bankruptcy notice BN 189992 issued on 19 April 2016, was served on Mr Paul Mervyn Fordyce. On 11 May 2016 Mr Fordyce made an application to this Court seeking orders that the time for compliance with the bankruptcy notice be extended and, ultimately, that it be set aside.

2. Mr Wilson Kim Ling Wong was the creditor on the bankruptcy notice and is the respondent in these proceedings.

3. On 6 July 2016, the Court made orders by the consent of both parties, that the application, as amended on 31 May 2016, be dismissed. Mr Wong applied to the Court for an order that his costs be paid by Mr Fordyce. Mr Fordyce did not agree that he should pay Mr Wong’s costs of the proceedings and opposed the application. The parties made written submissions and filed evidence by way of affidavits in support of their respective positions. They were content for the Court to proceed to judgement on the issue of costs in light of the documents filed pursuant to the orders made on 6 July 2016. For the purposes of the disposition of this issue I have proceeded on the basis of the written submissions and the affidavits to which the parties refer and on which they rely.

4. Mr Wong relied on the following documents ([4] – [5] of the respondent’s written submissions filed on 27 July 2016):

   “[4] …

   (a) Application filed by the Applicant on 12 May 2016 (Application);

   (b) Amended Application filed by the Applicant on 31 May…