Katter v Britten-Jones and Ors Named in the Schedule T/As Piper Alderman

[2016] FCCA 1680

FEDERAL CIRCUIT COURT OF AUSTRALIA

KATTER v BRITTEN-JONES & ORS NAMED IN THE SCHEDULE T/AS PIPER ALDERMAN [2016] FCCA 1680

Catchwords:
BANKRUPTCY – application to set aside bankruptcy notice.

COSTS – whether Court should exercise discretion to award costs – costs awarded on a party/party basis.

Legislation:

Bankruptcy Act 1966

Cases cited:

Re Minister for Immigration and Ethnic Affairs (1997) 143 ALR 1

Applicant: JOSEPH KATTER

Respondent: ANTHONY BRITTEN-JONES & ORS NAMED IN THE SCHEDULE T/AS PIPER ALDERMAN

File Number: SYG 939 of 2016

Judgment of: Judge Street

Hearing date: 6 July 2016

Date of Last Submission: 6 July 2016

Delivered at: Sydney

Delivered on: 6 July 2016

REPRESENTATION

Counsel for the Applicant: Mr P King

Solicitors for the Applicant: McKells Solicitors

Counsel for the Respondent: Mr V Kerr

Solicitors for the Respondent: Piper Alderman

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $23,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 939 of 2016

JOSEPH KATTER

Applicant

And

ANTHONY BRITTEN-JONES & ORS NAMED IN THE SCHEDULE T/AS PIPER ALDERMAN

Respondent

REASONS FOR JUDGMENT

1. This is an application that was commenced to set aside a bankruptcy notice issued on 20 October 2015, which was amended on 9 March 2016.  The underlying subject matter of the bankruptcy notice concerns solicitors’ fees in relation to matters in which the respondent had acted for the applicant and other family members in relation to estates and other matters.

2. The applicant filed an affidavit in support that did not on its face identify any fact to support the existence of a genuine counter-claim, set-off or cross-demand.  The matter has been before the Court on earlier occasions.  On the last occasion, the Court was informed that there was a potential compromise that would be achieved in relation to a certificate of title being handed over to give effect to an intended security that was never perfected. 

3. That event did not occur and at today’s hearing Mr King of counsel appeared for the applicant and sought to tender in Court a bank cheque which he said had been proffered to the respondent.  When invited by the Court on returning the bank cheque to the applicant to hand the same to the respondent, counsel indicated that the applicant wished to have the matter agitated and was not proposing at that stage to hand the cheque over to the respondent.

4. The Court provided an adjournment to the parties to consider their positions and in that adjournment the bank cheque was handed over for the full amount of the bankruptcy notice to the representatives of the respondent.  In these circumstances, the only issue outstanding is costs.  Ordinarily, where the subject matter of dispute is resolved and the Court does not need to determine the subject matter of the dispute and the only issue is costs, the Court will take into account the guidance given by McHugh J in Re Minister for Immigration and Ethnic Affairs (1997) 143 ALR 1 and there will be no order as to costs.

5. However, in the present case, the Court is able to conclude that the application brought by the applicant lacked merit and that those proceedings unreasonably put the respondent to the incurring of legal costs.  I am satisfied that this is an appropriate matter in which to order the applicant to pay the respondent’s legal costs.  Evidence has been tendered in relation to the applicant’s legal costs.  On one view, that evidence supports the legal costs being in the amount on a solicitor/client basis for something in the order of $35,393.60.

6. The Court has had tendered a breakdown, which it accepts reflects the assessment of costs prepared by the applicant on an hourly basis with hourly rates totalling $28,904.  It was accepted by counsel for the respondent that this was a solicitor/client breakdown and that it would be appropriate to reduce that amount to reflect what would be the party/party costs.

7. I take into account the nature of the dispute that has already arisen between the parties and the duty of the Court to bring finality to disputes between parties. This is not an appropriate matter in which to order the costs be taxed. In these circumstances, the Court orders that the costs should be fixed in the amount of $23,000.  The Court is satisfied that $23,000 reflects reasonable costs of the respondent on a party/party basis in respect of the application brought by the applicant that was without merit.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2016