Genovese v BGC Construction Pty Ltd (No.2)

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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)

ASIC v Forge (2003) 133 FCR 487, [2003] FCAFC 274
Australian Guarantee Corporation Ltd v De Jager (1984) VR 483
Botany Municipal Council v Secretary, Department of Arts, Sport, Environment, Tourism & Territories (1992) 34 FCR 412
Bhagat v Global Custodians Ltd [2002] FCA 223
Caboolture Park Shopping Centre Pty Ltd [in Liq] v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, (1993) 117 ALR 253
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Davids Holdings Pty Ltd v Coles Myer Limited & Ors (1995) ATPR 41-383
D’Souza v Pattison [2007] FMCA 116
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Genovese v BGC Construction Pty Ltd (2005) 215 ALR 440, (2005) 3 ABC(NS) 163, [2005] FCA 215
Genovese v BGC Construction Pty Ltd [2006] FCA 105
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Genovese v BGC Construction Pty Ltd [2007] FMCA 71
Morien v Johnston [2006] FMCA 1918
PCRZ Investments Pty Ltd v National Golf Holdings [2002] VSCA 24
Pittorino v Meynert & Ors [2001] WASC 245
Proposch v Anne French Investments Pty Ltd [2006] WADC 47
Richardson v Leonard Cohen & Co [2007] FMCA 78
Rouse v Shepherd [No 2] (1994) 35 NSWLR 277
Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land Agency Co Ltd & Ors (unreported, Supreme Court of South Australia, Perry J, 4 February 1993)
Sheahan & Le Poidevin Industries Pty Ltd (in Liquidation) v Northern Australian Land Agency Co Ltd & Ors (unreported, Full Court of Supreme Court of South Australia, 6 April 1994)
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd  (unreported, Federal Court, French J, 3 May 1991)
The Queen v Isaac & Ors, Ex Parte Transport Workers Union of Australia (1985) 159 CLR 323
The Queen v Moore, Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470
Ugly Tribe Co Pty Ltd v Sikola & Ors [2001] VSC 189

Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63

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
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Details
Case
[2007] FMCA 601
Decision Date

CaseChat Overview and Summary

The case of Genovese v BGC Construction Pty Ltd (No.2) was heard in the Federal Circuit Court of Australia, dealing with an application for costs following an earlier determination made on 29 January 2007. The nature of the dispute centres on the reassessment and adjustment of costs orders issued in the original decision. The applicant, Genovese, sought to set aside and replace certain elements of the costs orders, while the respondent, BGC Construction Pty Ltd, responded to the application and argued against the proposed changes.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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