George v Fletcher (Trustee) (No 2) - [2012] FCAFC 170

FEDERAL COURT OF AUSTRALIA
George v Fletcher (Trustee) (No 2) [2012] FCAFC 170

Citation: George v Fletcher (Trustee) (No 2) [2012] FCAFC 170

Appeal from: Fletcher v George & Ors [2011] FMCA 553

Parties: LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE and NATIONAL AUSTRALIA BANK

File number: QUD 192 of 2011

Judges: SIOPIS, JESSUP AND KATZMANN JJ

Date of judgment: 5 December 2012

Catchwords: COSTS – Application for variation of costs order – appellant successful on only one of several issues and ordered to pay 90% of the first respondent’s costs

Legislation: Bankruptcy Regulations 1996 (Cth), reg 6.03

Cases cited: George v Fletcher (Trustee) [2012] FCAFC 148
Hewlett Packard Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 278

Date of hearing: Determined on the papers

Date of last submissions: 29 November 2012

Place: Sydney (via video link to Brisbane)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 5

Solicitor for the Appellant: The appellant was self-represented

Solicitor for the First Respondent: Holman Webb Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD192 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
LAUREN KAY GEORGE
Appellant

AND:
WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

JUDGE:

SIOPIS, JESSUP AND KATZMANN JJ

DATE OF ORDER:

5 DECEMBER 2012

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO BRISBANE)

THE COURT ORDERS THAT:
1.The appellant’s application to vary Order 5 made by the Court on 25 October 2012 be dismissed.
2.The appellant pay the first respondent’s costs of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD192 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
LAUREN KAY GEORGE
Appellant

AND:
WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

JUDGE:

SIOPIS, JESSUP AND KATZMANN JJ

DATE:

5 DECEMBER 2012

PLACE:

SYDNEY (VIA VIDEO LINK TO BRISBANE)

REASONS FOR JUDGMENT

On 25 October 2012 the Court pronounced judgment and published its reasons in this matter: George v Fletcher (Trustee) [2012] FCAFC 148. We dismissed the appeal in so far as it concerned the second, third and fourth respondents and ordered Ms George (in Order 4) to pay their costs. But we allowed the appeal in part in relation to one aspect of the case brought against the first respondent, Mr Fletcher and ordered that the proceeding be remitted to the Federal Magistrates Court for that limited purpose (Order 2). In all the circumstances we…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCAFC 170
Decision Date: 5 December 2012

CaseChat Overview and Summary

In the case of George v Fletcher (Trustee) (No 2), the appellant, George, sought a variation of a costs order previously made by the Court on 25 October 2012. The original costs order required George to pay 90% of the first respondent's costs. The matter came before the Court to consider George's application to have this order varied.

The legal issues before the Court were whether the appellant's application to vary the costs order should be granted and, if not, what orders should be made regarding costs for the current application. The Court needed to consider the principles governing costs orders in litigation and the circumstances in which such orders may be varied.

The Court found that George had been successful on only one of the several issues contested in the case, and therefore, the original costs order was appropriate. The Court emphasised that costs orders are designed to reflect the outcome of the litigation, and in this case, the appellant's partial success did not warrant a variation of the original order. Consequently, the Court dismissed George's application to vary the costs order and ordered George to pay the first respondent's costs of the current application. This decision underscores the importance of the outcome of litigation in determining the appropriate allocation of costs.

Orders

Orders of the court

1. The appellant’s application to vary Order 5 made by the Court on 25 October 2012 be dismissed.

2. The appellant pay the first respondent’s costs of this application.

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

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.

Citation:		George v Fletcher (Trustee) (No 2) [2012] FCAFC 170
Appeal from:		Fletcher v George & Ors [2011] FMCA 553
Parties:		LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE and NATIONAL AUSTRALIA BANK
File number:		QUD 192 of 2011
Judges:		SIOPIS, JESSUP AND KATZMANN JJ
Date of judgment:		5 December 2012
Catchwords:		COSTS – Application for variation of costs order – appellant successful on only one of several issues and ordered to pay 90% of the first respondent’s costs
Legislation:		Bankruptcy Regulations 1996 (Cth), reg 6.03
Cases cited:		George v Fletcher (Trustee) [2012] FCAFC 148 Hewlett Packard Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 278
Date of hearing:	Determined on the papers
Date of last submissions:	29 November 2012
Place:	Sydney (via video link to Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Solicitor for the Appellant:	The appellant was self-represented
Solicitor for the First Respondent:	Holman Webb Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD192 of 2011

JUDGE:	SIOPIS, JESSUP AND KATZMANN JJ
DATE OF ORDER:	5 DECEMBER 2012
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO BRISBANE)

JUDGE:	SIOPIS, JESSUP AND KATZMANN JJ
DATE:	5 DECEMBER 2012
PLACE:	SYDNEY (VIA VIDEO LINK TO BRISBANE)