Kent and Orlizki v Rahman (No.3)

[2019] FCCA 1999

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENT AND ORLIZKI v RAHMAN (No.3) [2019] FCCA 1999

Catchwords:
PRACTICE AND PROCEDURE – COSTS – Whether an order that the respondent pay the costs of an unsuccessful application brought by him for review of a Registrar’s order should be varied or discharged – order as to costs not discharged or varied.

Applicant: RODNEY KENT AND TIM ORLIZKI (TRADING AS "KENT ATTORNEYS")

Respondent: FAHMID RAHMAN

File Number: SYG 3379 of 2018

Judgment of: Judge Manousaridis

Hearing date: 16 July 2019

Date of Last Submission: 16 July 2019

Delivered at: Sydney

Delivered on: 16 July 2019

REPRESENTATION

Review applicant in person.

Solicitors for the Review Respondent: Mr T Orlizki of Kent Attorneys

ORDERS

1. The application in a case filed on 12 June 2019 by the respondent, Mr Fahmid Rahman, is dismissed;

2. The respondent, Mr Fahmid Rahman, pay the applicants’ costs of the application in a case as agreed or as assessed or as taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3379 of 2018

RODNEY KENT AND TIM ORLIZKI (TRADING AS "KENT ATTORNEYS")

Applicant

And

FAHMID RAHMAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 24 May 2019 I made orders dismissing an application for a review filed by the applicant on that review, Mr Rahman.  The application for review related to an order made by a Registrar of this court on 12 February 2019, ordering that Mr Rahman pay the costs of the respondents to the application for review in the amount of $10,630.11 cents.­ Those orders for costs were made in a proceeding in which the respondents to this application for review, Mr Kent and Mr Orlizki – and I will refer to them as the creditors – filed a creditors’ petition.

2. I also ordered on 24 May 2019 that Mr Rahman pay the costs of the application of review. That order was made subject to granting the parties liberty to apply, by no later than 7 June 2019, an application in the case to discharge or vary that order. Mr Rahman purported to exercise that liberty by filing an application in the case not by 7 June 2019 but on 12 June 2019. No point is taken that Mr Rahman filed the application in a case after 7 June 2019, and I will ignore that circumstance.

3. In any event, by his application in a case, Mr Rahman seeks an order that the costs order I made on 24 May 2019 either be discharged or that the costs order be stayed pending determination of proceeding number 2018/228861 in the District Court of New South Wales. That application is supported by an affidavit made by Mr Rahman affirmed on 7 June 2019.  Mr Rahman, who is not legally represented, relies on that affidavit, and I read that affidavit subject to relevance.  I did so because Mr Orlizki, who is appearing on behalf of the creditors, objected on the grounds that it was irrelevant and sought to reopen matters that had been the subject of findings in my judgment of 24 May 2019.  Mr Rahman, in that affidavit, rehearses many of the factual assertions that were the subject of previous affidavits that he filed and to which I referred in my reasons for judgment of 24 May 2019.

4. In submissions before me Mr Rahman said that the costs should only be paid if he fails in the District Court proceeding, indicating that he would pay those costs if he did not succeed in the District Court proceeding.  He also made fairly general allegations concerning the actions of the creditors about the manner in which they sought to recover their costs, which resulted in the cost certificates, which in turn formed the basis of the judgment on the basis of which they proceeded with their creditors’ petition.  It was alleged or asserted from the bar table that those proceedings were an abuse of process, and some other serious assertions were made from the bar table, which, given their seriousness and their being unsupported, it is not appropriate that I repeat them in these reasons for judgment.

5. The material on which Mr Rahman relies and the submissions that Mr Rahman made to me do not address what I consider to be a critical aspect of the grounds on which I dismissed his application for review of the Registrar’s order for costs, and the critical issue is to be found in paragraph 44 of my earlier reasons, where I set out the issues I considered to be relevant in determining whether Mr Rahman should be ordered to pay the costs of the proceeding of the creditors’ petition.  After setting out the issues, I said:

   It should be apparent that, in so framing the questions, whether Mr Rahman succeeds in his application in the District Court is not relevant to determining the question of costs I am required to decide.

6. As is apparent from my earlier reasons for judgment, the principal question I addressed there was whether the creditors acted reasonably in seeking to enforce their costs by means of bankruptcy proceedings, rather than through some other proceeding. Mr Rahman, as I said, in his affidavit, does not deal with this issue. Nor did he really engage with that issue in his oral submissions. His position is that he should only be liable to pay any amount, including the costs the Registrar ordered he should pay, which I affirmed, only if he fails in his challenge in the District Court proceeding to the cost certificates issued on the application of the creditors. Mr Orlizki, on behalf of the creditors, on the other hand, said costs should follow the event, and there are no circumstances that warrant the departure from the usual rule.

7. In my opinion, there is nothing that Mr Rahman has put before me that should lead me to discharge or vary the costs order I made.  The basis on which I affirmed the Registrar’s decision was that the creditors acted reasonably, and the only material on which Mr Rahman relied was, in effect, the material he relied in support of his application to review the Registrar’s orders. In those circumstances, I propose to order that the application in a case filed on 12 June 2019 be dismissed, and I will make that order in a moment.

   RECORDED: NOT TRANSCRIBED

8. I just heard submissions about costs.  Mr Orlizki asks for the costs of today’s application. He also asks that I assess those costs in the amount of $2,956. In support of that application Mr Orlizki handed up a document, which I will mark “MFI2” and describe as “Summary of costs, application in a case filed 12 June 2019”. Mr Rahman says he should not be ordered to pay costs today. He repeated his submission that he should not be ordered to pay anything until such time as the District Court proceeding is determined. He also said that he was not in a position to make submissions about the amount for which Mr Orlizki claims costs.

9. In my opinion, costs should follow the event of this application.  Mr Rahman has failed in it, and I propose to make an order for costs.  However, given that Mr Rahman has said he is not in a position to deal with the amount for which Mr Orlizki claims costs should be fixed, I simply propose to order that such costs be paid as agreed or as taxed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  22 July 2019