Holden, as trustee of the Bankrupt Estate of Fima Pekar v Pekar (No.6) - [2020] FCCA 3385

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLDEN, AS TRUSTEE OF THE BANKRUPT ESTATE OF FIMA PEKAR v PEKAR (No.6)

[2020] FCCA 3385

Catchwords:
BANKRUPTCY – Application for review of taxation – applicants argument regrettably misconceived and/or clearly not made out – application dismissed.

Legislation:

Federal Circuit Court Bankruptcy Rules 2016 (Cth), r.13.01

Applicant:

TIMOTHY MARK SHUTTLEWORTH HOLDEN, AS TRUSTEE OF THE BANKRUPT ESTATE OF FIMA PEKAR

Respondent:

IDA PEKAR

File Number:

MLG 932 of 2015

Judgment of:

Judge Burchardt

Hearing date:

12 November 2020

Date of Last Submission:

12 November 2020

Delivered at:

Dandenong

Delivered on:

16 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr La Pirow

Solicitors for the Applicant:

Rothwell Lawyers

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Not Applicable

ORDERS

The application for review of taxation filed by Ida Pekar on 20 July 2020 be dismissed.
Ida Pekar pay the costs of Timothy Mark Holden, to be taxed pursuant to the Federal Court Rules in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 932 of 2015

TIMOTHY MARK SHUTTLEWORTH HOLDEN, AS TRUSTEE OF THE BANKRUPT ESTATE OF FIMA PEKAR

Applicant

And

IDA PEKAR

Respondent

REASONS FOR JUDGMENT

This is an application for review of a taxation decision of Registrar Allaway dated 20 July 2020. The applicant for review is Ms Ida Pekar but she has been represented by her husband by leave of the court. It should be noted that Mr Pekar has been given leave to do this on numerous occasions both by this court and the Federal Court.
The primary position taken by the trustee of the estate of Mr Pekar is that the application is entirely misconceived. The written submissions filed by the trustee, upon which counsel was essentially content to rely in the first instance, point to undoubted technical deficiencies in the application. It is not necessary to repeat them.
That is because the matters upon which Mr Pekar relies spring, as it were, from a totally different source. The written materials filed, and indeed the oral submissions made, were not easy to follow, but doing the best I can it seems to me that Mr Pekar’s criticisms amount to the following:
i)No order was ever made by the court (constituted by myself) in MLG 932 of 2015. When judgment was given and orders made on 20 January 2017 no orders were made as to costs (although a timetable for submissions was set out). Accordingly, to the extent that Registrar Alloway taxed a bill of costs in that proceeding, this was beyond power and/or otherwise improper.
ii)Registrar Allaway taxed the bill of costs pursuant to the Federal Court Rules and not the Federal Circuit Court Rules.
iii)The bill of costs improperly included a number of matters including the fees of the cost consultant engaged to provide the bill in taxable form.
iv)The bills taxed by Registrar Allaway had already been twice rejected by the Federal Court and it was improper for them to be presented.
v)The bills were manifestly and ludicrously excessive and should never have exceeded $7000 in any event.
vi)The bills were presented to the court in a fashion which included fraud on behalf of the legal practitioners concerned acting on behalf of the trustee.
Regrettably it is my view that Mr Pekar’s criticisms are all completely misconceived and it is, in my view, appropriate and proper to deal with them in fairly short order.
First, while it is true that I made no order as to costs in matter MLG 932 of 2015, the matter was then prosecuted by Mrs Pekar by way of appeal to Tracey J in matter VID 81 of 2017. When his Honour pronounced orders in that matter on 30 May 2017 relevantly he ordered that:
The appellant (Mrs Ida Pekar) pay the costs of the respondent (the trustee of the bankrupt estate of Mr Fima Pekar) of the appeal in this court and of the proceeding in the Federal Circuit Court.
It therefore follows inexorably that while I made no order as to costs Tracey J made an order that Mrs Pekar pay the costs of the proceeding MLG 932 of 2017.
Next, Mr Pekar’s concern that the costs were taxed by Registrar Allaway pursuant to the Federal Court Rules is misconceived. As counsel for the trustee correctly submitted, rule 13.01 of the Federal Circuit Court Bankruptcy Rules 2016 relevantly provides at sub rule (1):
Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the court otherwise orders.
Division 13.2 is not relevant. The court has not otherwise ordered so the registrar was correct to tax the bill of costs pursuant to the Federal Court Rules.
Although the trustee endeavoured to have both matters taxed under the same bill of costs initially, and this was rejected by the Federal Court, these circumstances are fully set out in the judgment of Registrar Allaway at paragraph 3 as follows:
On 31 January 2018, in proceeding VID81/2017, a bill of costs was lodged for filing on behalf of Mr Holden by his solicitors, Rothwell Lawyers. That bill of costs impermissibly sought to combine the costs in VID81/2017 with those in MLG932/2015 and was, for that reason, rejected for filing by the Registry. On 22 October 2018, separate bills of costs were filed in VID81/2017 and MLG932/2015. Those are the bills of costs the subject of this taxation decision.
It is quite apparent that there has been no impropriety in the process whereby separate bills were ultimately lodged and taxed by Registrar Allaway.
It should be noted that Registrar Allaway adopted a somewhat unusual procedure for the taxation in light of the COVID emergency and the difficulties that arose therefrom. From reading Registrar Allaway’s decision it is quite clear that the registrar was acting at all times in accordance with the relevant rules which he waived to the extent necessary and, in my view, entirely properly.
While Mr Pekar takes exception to aspects of the bills (which he has not itemised as he should have done pursuant to the rules relevant to a review of taxation) it should be noted that Registrar Allaway is an extremely experienced registrar. Anyone who reads the registrar’s ruling on the matter will see that the registrar applied himself conscientiously to the matters that were before him and disallowed matters he felt were inappropriate. There is nothing to suggest that the resultant figures are in any way inappropriate.
Finally I note that Mr Pekar has not been slow to allege fraud on the part of the legal practitioners. I think it is best to put this matter aside in as neutral a fashion as is possible, bearing in mind that Mr Pekar is self-represented and it is clear from everything he has said and written that his emotions are very deeply engaged by this long saga. It should be noted that there is simply nothing to suggest that there has been any improper conduct, either by the trustee or by solicitors acting for him.
In the circumstances the application for review will be dismissed with costs. In case there be any question as to whether this is a matter arising under the Bankruptcy Act, I would indicate that this is a matter in which costs should, if taxation be necessary, be taxed according to the Federal Court Rules even if that were not to be the result of automatic operation of rule 13.01 of this court’s bankruptcy rules in any event.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 16 December 2020