General Motors Acceptance Corporation Australia v Marshall

[2002] FCA 1057

FEDERAL COURT OF AUSTRALIA

General Motors Acceptance Corporation Australia v Marshall [2002] FCA 1057

GENERAL MOTORS ACCEPTANCE CORPORATION AUSTRALIA v GARRY BRENT MARSHALL (AKA GARRY MARSHALL, AKA GARY MARSHALL)
A 7004 OF 2001

GYLES J
SYDNEY
26 AUGUST 2002 

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 7004 OF 2001

BETWEEN:	GENERAL MOTORS ACCEPTANCE CORPORATION AUSTRALIA APPLICANT CREDITOR
AND:	GARRY BRENT MARSHALL (AKA GARRY MARSHALL, AKA GARY MARSHALL) RESPONDENT DEBTOR
JUDGE:	GYLES J
DATE OF ORDER:	26 AUGUST 2002
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

The costs of General Motors Acceptance Corporation Australia (including reserved costs) and the costs of EA Bourne Pty Limited up to and including 13 December 2001 of and incidental to the petition be taxed and paid out of the estate of the bankrupt in accordance with the Bankruptcy Act 1966 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 7004 OF 2001

BETWEEN:	GENERAL MOTORS ACCEPTANCE CORPORATION AUSTRALIA APPLICANT CREDITOR
AND:	GARRY BRENT MARSHALL (AKA GARRY MARSHALL, AKA GARY MARSHALL) RESPONDENT DEBTOR

JUDGE:	GYLES J
DATE:	26 AUGUST 2002
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT ON COSTS

1. I delivered judgment in this matter on 13 August 2002.  My tentative view was that it might be a case in which to make no order as to costs for the reasons explained in the judgment.  I invited further submissions as to costs from the parties.  I have received submissions now from the original petitioning creditor, the substituted petitioning creditor and the respondent debtor.

2. With the benefit of the submissions which I have received, I have been persuaded that I should order costs out of the bankrupt estate in the usual way.  I am influenced primarily by my conclusion that, even if the amendment about security had been made prior to the initial hearing (when the point did appear to be taken), or at the initial hearing (when the point appeared to be abandoned), the debtor would still have pressed on with the arguments which were presented for opposing the order at all times upon which he failed.  The time spent in examining the issue was a relatively brief portion of the hearing and the issue was not squarely raised on behalf of the debtor. 

3. Counsel for the debtor suggests that it is inappropriate that an application now be made in relation to the costs of the original petitioner as the time for that was at the time of substitution.  As the proceeding remains on foot, I see no difficulty in dealing with the costs of the original petitioning creditor.  I am of the opinion that the original petitioning creditor has made a case for receiving its costs of acting as such up to and including the time of substitution.

4. I am influenced in these conclusions, to an extent, by the circumstance that the bankrupt does not have a direct interest in the costs order.  It can be reasonably presumed that what has been done by the respective petitioning creditors is for the benefit of creditors generally.

5. I am not persuaded that it is appropriate that the original petitioning creditor be entitled to its costs of acting as a supporting creditor after substitution.  That creditor had its chance but yielded the floor, and is thereafter at its own risk as to costs.   I am also clear that the original petitioning creditor is not entitled to costs related to collateral proceedings.  It may be that those costs can be proved in the bankruptcy, but that is a different issue.

6. The order of the Court is that the costs of the original petitioner up until the time of substitution, and the costs of the substituted petitioner thereafter, should be paid out of the bankrupt estate.

7. I should add that, if it be relevant, the act of bankruptcy was complete on 29 January 2001.  That is the submission on behalf of the petitioning creditor and there has been no substantive argument addressed by the parties for any alternative date.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             26 August 2002

Counsel for the Applicant Creditor:	DA Hassall
Solicitor for the Applicant Creditor:	Corrs Chambers Westgarth
Counsel for the Respondent Debtor:	D Ash
Date of Judgment:	13 August 2002
Date of Order as to Costs:	26 August 2002