Investec Australia Finance Pty Limited v Naude (No 2)

[2016] FCA 835

FEDERAL COURT OF AUSTRALIA

Investec Australia Finance Pty Limited v Naude (No 2) [2016] FCA 835

File number:

NSD 1040 of 2014

Judge:

FARRELL J

Date of judgment:

22 July 2016

Catchwords:

COSTS – creditor’s petition – original petition withdrawn with leave of the Court – new petition filed – applicant successful on second petition – appropriateness of a costs order in respect of the entire proceedings – costs limited to the date of presentation of the second creditor’s petition

Legislation:

Bankruptcy Act 1966 (Cth) s 109(1)(a)

Bankruptcy Regulations 1996 (Cth) reg 6.01(1), Sch 3

Federal Court (Bankruptcy) Rules 2016 (Cth) r 13.01(1)

Federal Court Rules 2011 (Cth) Pt 40

Cases cited:

Investec Australia Finance Pty Limited v Naude [2016] FCA 731

Date of hearing:

Heard on the papers

Date of last submission:

30 June 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

4

Counsel for the Applicant:

Mr D Sulan

Solicitor for the Applicant:

Arnold Bloch Leibler

Counsel for the Respondent:

The respondent did not file written submissions

ORDERS

NSD 1040 of 2014

BETWEEN:

INVESTEC AUSTRALIA FINANCE PTY LIMITED

Applicant

AND:

ALFRED NAUDE

Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	22 JULY 2016

THE COURT ORDERS THAT:

1.The petitioning creditor’s costs in respect of the presentation of and conduct of proceedings upon the 4 May 2015 Creditor’s Petition, be taxed and paid from the respondent debtor’s estate.

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

REASONS FOR JUDGMENT

1. On 20 June 2016, I made a sequestration order against the estate of Mr Naude: see Investec Australia Finance Pty Limited v Naude [2016] FCA 731. I also ordered that the parties file written submissions on the question of costs having regard to my view, as expressed in the reasons, that it would not be appropriate for the applicant to recover the costs related to its original creditor’s petition (the 13 October 2014 Petition) up to the date on which orders were made giving the applicant leave to withdraw that petition.

2. The applicant filed submissions on 30 June 2016 indicating that it did not seek its costs related to the presentation of the 13 October 2014 Petition; it only sought costs in respect of the second petition (the 4 May 2015 Petition) on the basis of the applicant’s success in securing the sequestration order against Mr Naude and in accordance with the general principle that costs follow the event: see section 109(1)(a) of the Bankruptcy Act 1966 (Cth), regulation 6.01(1) and Schedule 3 of the Bankruptcy Regulations 1996 (Cth), rule 13.01(1) of the Federal Court (Bankruptcy) Rules 2016 (Cth) and Part 40 of the Federal Court Rules 2011 (Cth).

3. Mr Naude did not file submissions on the question of costs.

4. I am satisfied that the applicant is entitled to the costs claimed.  I will order that the applicant’s costs in respect of the presentation of and conduct of proceedings upon the 4 May 2015 Creditor’s Petition, be taxed and paid from Mr Naude’s bankrupt estate.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        22 July 2016