Jackson v Salisbury (No 3)

[2000] FCA 1840

FEDERAL COURT OF AUSTRALIA

Jackson v Salisbury (No 3) [2000] FCA 1840

BANKRUPTCY - trustee brings unsuccessful proceedings to recover property claimed to be part of bankrupt estate - whether trustee liable to pay costs personally.

Bankruptcy Act 1966 (Cth) s32
Federal Court Rules O 37 r 6

In re Arthur Williams & Co; Ex parte Official Receiver [1913] 2 KB 88 applied
Hunter v Official Receiver in Bankruptcy of Southern District of Queensland (1980) 50 FLR 168 applied
Scott Fell v Lloyd (1911) 13 CLR 230 applied
Re Campbell; Ex parte Official Trustee (1987) 13 FCR 326 referred to
Adsett v Berlouis (1992) 109 ALR 100 applied

IN THE MATTER OF RONALD FRANCIS DESMOND SALISBURY

JOHN HENDERSON JACKSON v RONALD FRANCIS DESMOND SALISBURY
S 7178 OF 1999

MANSFIELD J
14 DECEMBER 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7178 OF 1999

IN THE MATTER OF RONALD FRANCIS DESMOND SALISBURY

BETWEEN:	JOHN HENDERSON JACKSON APPLICANT
AND:	RONALD FRANCIS DESMOND SALISBURY RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	14 DECEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicant is personally liable to the respondent for the costs ordered to be paid by him on 9 August 2000.

2.The applicant is entitled to be indemnified in respect of that liability from any funds remaining in the bankrupt estate.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7178 OF 1999

IN THE MATTER OF RONALD FRANCIS DESMOND SALISBURY

BETWEEN:	JOHN HENDERSON JACKSON APPLICANT
AND:	RONALD FRANCIS DESMOND SALISBURY RESPONDENT
JUDGE:	MANSFIELD J
DATE:	14 DECEMBER 2000
PLACE:	ADELAIDE

REASONS FOR DECISION

1. In this matter I gave judgment on 9 August 2000 dismissing the claim, and subsequently on the same date gave reasons for my decision making costs orders as follows:

   (1)       The applicant pay the respondent his costs of the application to be taxed.

   (2)The applicant pay to the intervener costs of communicating with and preparing the affidavits of proposed evidence of and arranging the attendance of the witnesses Norma Margaret Williams and David Wayne Haslam, to the extent that that work does not involve any duplication of work carried out by the respondent and his solicitors, but limited to those costs.

2. On 29 September 2000, the respondent’s costs were taxed and allowed at $8,933.  The applicant has declined to pay those costs.  He asserts that he commenced the proceedings in his capacity as the trustee of the bankrupt estate of the respondent, and that the liability for costs is a liability which attaches to that bankrupt estate and not to the applicant personally.  At the moment, there are insufficient assets in the bankrupt estate with which to meet the claim for costs.

3. The applicant also asserts, and it is accepted by the respondent, that his conduct of the proceedings was not funded by a creditor or creditors of the bankrupt estate of the respondent.…