Israel and Anor. v Vince

[2001] FMCA 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISRAEL & ANOR v VINCE  [2001] FMCA 54

BANKRUPTCY – Leave to discontinue claim against Trustee – costs –
Order 22 Federal Court Rules

Applicants: DAVID EWAN ISRAEL and MARY ANNE ISRAEL

Respondent: PETER ROBERT VINCE

File No:   MZ195 of 2001

Delivered on: 8 June 2001

Delivered at: Melbourne

Hearing Date: 8 June 2001

Judgment of: McInnis FM

REPRESENTATION

The Applicant:	In Person
Counsel for the Respondent:	Mr P Fary of Counsel

Solicitors for the Respondent: Gadens Lawyers

ORDERS

1. Pursuant to Order 22 of the Federal Court Rules leave is granted to the Applicants to discontinue the Application.

2. The Applicants shall pay the Respondent’s costs which are fixed at $2,000.

3. The costs order shall be stayed until 6 August 2001.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ195 of 2001

DAVID EWAN ISRAEL AND MARY ANNE ISRAEL

Applicants

And

PETER ROBERT VINCE

Respondent

REASONS FOR JUDGMENT

1. In this matter application has been made by the Applicants – and I should indicate “the Applicants” are Mr Israel, the Firstnamed Applicant, who at all times indicated he appears and acts for and on behalf of the Secondnamed Applicant.  He has indicated to this Court by correspondence and oral submissions that he wishes to discontinue the Application pursuant to Order 22 of the Federal Court Rules, which apply to the Federal Magistrates Court in the absence of rules of this Court.

2. This Application was in fact commenced by the Applicants and by an Application filed on 30 March 2001.  When the matter was listed before me on 7 May 2001, I had made an order that the Application be struck out upon there being no appearance.

3. Upon further documentation being placed before the Court, a hearing was convened on 16 May 2001, and on that occasion Mr Israel appeared in person and again representation from Ms Gobbo was noted on the file for the Respondent.  On that occasion I made orders that the Application be reinstated and I made further procedural orders that the Applicants file and serve any Affidavit material upon which they seek to rely on or before 25 May 2001 and that legible copies be placed on the file.  The matter was otherwise adjourned for hearing and fixed indeed for hearing on this day, 8 June 2001, at 10.45.

4. In the circumstances I have heard the submissions and read written material provided by the Applicants and I have heard submissions made by the Respondent.  I accept that in the circumstances the noncompliance with the time period fixed by the Court on 16 May 2001 has been explained reasonably by Mr Israel and I do not, in making my decision in relation to the matter of costs, in any way indicate that there is significant fault on the part of the Applicants in not complying with the orders made by this Court on 1 May 2001.

5. I have indicated already that I am prepared to grant leave to the Applicants pursuant to Order 22 to discontinue.  The issue that remains is one of costs.  As I have indicated, I am not concerned about noncompliance with the order I made in 16 May 2001.  I do need to have regard in exercising my discretion on the issue of costs the costs that have been incurred by the Respondent, which acts as trustee and acts in a manner which draws upon limited funds available to other creditors.  I have formed the view that is appropriate in a matter of this kind, having regard to the history and the circumstances, that some order as to costs be made and I make that order having heard an estimate of the costs.  I will make an order specifically for a fixed amount which is considerably less than the amount that might be claimed or at least taxed, because it is my firm view in this matter that there should be some finalisation of the litigation between the parties and, at least to the extent that I am able to, make an order that is fair to both parties.  In the circumstances I propose making the following orders:

   (1)Pursuant to Order 22 of the Federal Court Rules leave is granted to the Applicants to discontinue the Application.

   (2)The Applicants shall pay the Respondent’s costs which are fixed at $2,000.

   (3)The costs order shall be stayed until 6 August 2001.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date:  25 July 2001