Godfrey v Whitton - [2006] FCA 823

FEDERAL COURT OF AUSTRALIA
In the matter of Rose, a bankrupt; Godfrey v Whitton [2006] FCA 823
COSTS – s 129 Demand and s 139ZQ Notice under the Bankruptcy Act set aside, by consent – whether costs should be ordered against the Official Receiver – whether costs should be ordered against the Trustee and/or the Official Receiver on an indemnity basis
Held: in the circumstances of the case, it was appropriate to order that two-thirds of the Applicant’s costs be paid by the Trustee who issued the Demand and who requested the issue of the Notice and that one-third be paid by the Official Receiver, all such costs being taxed on a party and party basis
Bankruptcy Act 1966 (Cth) ss 55, 77C, 120, 121, 122, 129, 139ZQ, 139ZS
Terry v The Official Receiver [1998] FCA 1341
Citibank Limited, In the Matter of Stivacatas v Parker [2000] FCA 1914
Terry v Terry; Prentice v Official Receiver [1994] FCA 1031
Gersten v The Minister for Immigration and Multicultural Affairs [2001] FCA 260
IN THE MATTER OF JOHN EMMANUEL ROSE, A BANKRUPT; MURRAY GODFREY AS ADMINISTRATOR OF REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION) ACN 087 088 202 & ANOR v ROBERT WILLIAM WHITTON AS TRUSTEE OF THE ESTATE OF JOHN EMMANUEL ROSE, A BANKRUPT & ANOR
NSD 641 OF 2006
GRAHAM J
22 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 641 OF 2006

IN THE MATTER OF JOHN EMMANUEL ROSE, A BANKRUPT

BETWEEN:

MURRAY GODFREY AS ADMINISTRATOR OF REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION) ACN 087 088 202
FIRST APPLICANT

REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION)
SECOND APPLICANT

AND:

ROBERT WILLIAM WHITTON AS TRUSTEE OF THE ESTATE OF JOHN EMMANUEL ROSE, A BANKRUPT
FIRST RESPONDENT

OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

22 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicants' costs thrown away by the vacation of the hearing dates fixed for 23 June 2006 and 26 June 2006 be paid by the first respondent.
2.The costs of the applicants of the amended application be paid as to two thirds (²/₃) by the first respondent and as to one third (¹/₃) by the second respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 641 OF 2006

IN THE MATTER OF JOHN EMMANUEL ROSE, A BANKRUPT

BETWEEN:

MURRAY GODFREY AS ADMINISTRATOR OF REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION) ACN 087 088 202
FIRST APPLICANT

REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION)
SECOND APPLICANT

AND:

ROBERT WILLIAM WHITTON AS TRUSTEE OF THE ESTATE OF JOHN EMMANUEL ROSE, A BANKRUPT
FIRST RESPONDENT

OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE:

22 JUNE 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

These proceedings were commenced by an Application filed 29 March 2006. An Amended Application…

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.

Continue reading Godfrey v Whitton

Details

AGLC: Godfrey v Whitton [2006] FCA 823
Case: [2006] FCA 823
Decision Date: 22 JUNE 2006

CaseChat Overview and Summary

The parties involved in this case were Godfrey and Whitton. The dispute before the court concerned issues related to an amended application and the allocation of costs. The case was heard in the Supreme Court of Queensland. The central legal issue before the court was the appropriate allocation of costs between the parties following the vacation of certain hearing dates and the filing of an amended application.

The court examined the circumstances surrounding the vacation of the hearing dates and the filing of the amended application. It considered the respective roles and responsibilities of the parties in these events. The court determined that the first respondent's actions led to the vacation of the hearing dates, and thus, they were responsible for the applicants' costs related to these dates. Regarding the costs of the amended application, the court found that both the first and second respondents contributed to the need for the amendment, and accordingly, they were jointly liable for these costs, with the first respondent bearing a larger share of the burden.

Following its analysis, the court ordered that the costs associated with the vacated hearing dates be paid by the first respondent. Furthermore, the court ruled that the costs of the amended application should be divided between the first and second respondents, with the first respondent responsible for two-thirds of these costs and the second respondent for one-third. These orders reflected the court's assessment of the parties' respective contributions to the events leading to the costs.

Orders

Orders of the court

1. The applicants' costs thrown away by the vacation of the hearing dates fixed for 23 June 2006 and 26 June 2006 be paid by the first respondent.

2. The costs of the applicants of the amended application be paid as to two thirds (2/3) by the first respondent and as to one third (1/3) by the second respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAHAM J

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Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 641 OF 2006

BETWEEN:	MURRAY GODFREY AS ADMINISTRATOR OF REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION) ACN 087 088 202 FIRST APPLICANT REGIS TOWERS REAL ESTATE PTY LIMITED (IN ADMINISTRATION) SECOND APPLICANT
AND:	ROBERT WILLIAM WHITTON AS TRUSTEE OF THE ESTATE OF JOHN EMMANUEL ROSE, A BANKRUPT FIRST RESPONDENT OFFICIAL RECEIVER SECOND RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	22 JUNE 2006
WHERE MADE:	SYDNEY

JUDGE:	GRAHAM J
DATE:	22 JUNE 2006
PLACE:	SYDNEY