FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENOVESE v BGC CONSTRUCTION PTY LTD (No.2) | [2007] FMCA 601 |
| BANKRUPTCY – Application to set aside bankruptcy notice dismissed. COSTS – Indemnity costs – principles. PRACTICE AND PROCEDURE – Varying or setting aside earlier costs order – intention of the Court – consent of party favoured by earlier costs order. |
| Bankruptcy Act 1966 (Cth), ss.30 (1), 32 and 41(6A) Federal Court Rules, O.35 and 62 Federal Magistrates Act 1999 (Cth), ss.8,14,15, 79(2) and (3), 81, 86(b), (c) and (d) Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.1.03(2), 13.01(1) Federal Magistrates Court Rules 2001 (Cth), rr.16.01 and 16.05 Federal Court of Australia Act 1976 (Cth), ss.5, 22, 23 and 43, Local Court Act 1904 (WA) |
| Applicant: | HERCOLE PIETRO GENOVESE |
| Respondent: | BGC CONSTRUCTION PTY LTD |
| File number: | PEG 121 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 March 2007 |
| Date of last submission: | 15 March 2007 |
Keep reading for free
Create a free CaseChat account to read Genovese v BGC Construction Pty Ltd (No.2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2007] FMCA 601
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the order made on 29 January 2007 should be set aside and replaced as sought by the applicant. Specifically, the court had to consider whether the Federal Magistrate's assessment of costs was correct and if there were any grounds for altering the orders in light of new submissions and evidence. The court also needed to determine the appropriate basis for the costs orders in light of the outcome of the application.
The court found that there were valid grounds for setting aside the original order and substituting a new order in its place. It was determined that the original order contained errors and did not accurately reflect the costs incurred and the principles governing cost awards. The court further held that the applicant should bear the costs of the respondent’s indemnity costs application on a party-party basis, in addition to the costs of the original proceedings. The reasoning was based on the applicant’s failure to persuade the court that the original assessment was incorrect or unjust, and the respondent’s successful application for indemnity costs.
The final orders of the court were that the original order be set aside and replaced with a new order, and that the applicant pay the respondent's costs, including the costs of the indemnity costs application, on the specified bases.
Orders
Orders of the court
1.
Under rule 16.05(2)(f) of the Federal Magistrate Court Rules (Cth) 2001, that Order (2) of the orders made by the Court on 29 January 2007 be set aside, and an order in terms of Order (2) of these orders be substituted therefore.
2.
The Applicant pay the Respondent’s costs, including any reserved costs, if not agreed, to be taxed under the Federal Court Rules, on an indemnity basis.
3.
The Applicant pay the Respondent’s costs of the Respondent’s indemnity costs application, if not agreed, to be taxed under the Federal Court Rules on a party-party basis.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.