Ganesh v Dobrowolski (No 2)

[2021] FCA 1085

FEDERAL COURT OF AUSTRALIA

Ganesh v Dobrowolski (No 2) [2021] FCA 1085

Appeal from:

Ganesh v Dobrowolski [2020] FCCA 1013

File number:

VID 316 of 2020

Judgment of:

MOSHINSKY J

Date of judgment:

10 September 2021

Catchwords:

PRACTICE AND PROCEDURE – costs – bankruptcy – appeal from the Federal Circuit Court of Australia – where appeal dismissed – whether any basis to depart from usual order that costs follow the event

Legislation:

Bankruptcy Act1966 (Cth)

Federal Court Rules 2011, rr 40.12, 40.14

Federal Court (Bankruptcy) Rules 2016, r 13.01

Cases cited:

Lawman v Queensland Building Services Authority (No 2) [2000] FCA 174

Oshlack v Richmond River Council (1998) 193 CLR 72

Ruddock v Vadarlis(No 2) (2001) 115 FCR 229

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

7

Date of last submissions:

27 August 2021

Date of hearing:

Determined on the papers

Counsel for the Appellant:

The appellant filed submissions on her own behalf

Counsel for the First Respondent:

Mr MR Champion

Solicitor for the First Respondent:

Featherbys Lawyers

Counsel for the Second Respondent:

Mr J Kohn

Solicitor for the Second Respondent:

DSA Law

ORDERS

VID 316 of 2020

BETWEEN:

ANANDAVALLI GANESH

Appellant

AND:

WALTER DOBROWOLSKI

First Respondent

MATTHEW GOLLANT AND NORMAN JONES, IN THEIR CAPACITY AS THE JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF ANANDAVALLI GANESH

Second Respondent

ORDER MADE BY:	MOSHINSKY J
DATE OF ORDER:	10 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The appellant pay the first respondent’s and the second respondent’s costs of and incidental to the appeal, such costs to be determined in accordance with Part 40 of the Federal Court Rules 2011 and to be paid from the bankrupt estate of Anandavalli Ganesh.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1. On 6 August 2021, I gave judgment in this appeal: Ganesh v Dobrowolski [2021] FCA 909. I decided that the appeal should be dismissed. These reasons deal with the issue of costs. They should be read together with the reasons for judgment of 6 August 2021. I will adopt the abbreviations used in the 6 August 2021 reasons.

2. Pursuant to the orders made on 6 August 2021, each of the parties has filed a written submission on costs.  Mr Dobrowolski submits that costs should follow the event.  He submits that there are no special circumstances in this case to displace the usual practice that Mr Dobrowolski as the successful party should have his costs.  He seeks an order that the costs be paid out of the bankrupt’s estate: see, eg, Lawman v Queensland Building Services Authority (No 2) [2000] FCA 174.

3. The Trustees also seek an order for costs on the basis of the general rule that costs follow the event.  They note that r 13.01(1) of the Federal Court (Bankruptcy) Rules 2016 provides that, subject to Div 13.2, a person…