Lane v McConochie - [2006] FMCA 376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANE & ANOR v McCONOCHIE

[2006] FMCA 376

BANKRUPTCY – Costs – costs of application to preserve property – application against non-party solicitor.

COSTS – Power to order against stranger to application.

Bankruptcy Act1966, s.50
Federal Magistrates Court Act 1999, s.79
Federal Magistrate Court Rules 2001, r 21.07

Ames v Trustees of the Birkenhead Docks 20 Beav. 355; 52 ER 630
Hayward v Gifford (1830) 4 M & W 194; 150 ER 1399
Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2AC 186
Brown v Farebrother (1888) 58 LJ Ch 3
Seaward v Paterson [1897] 1 Ch 545
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59
Re: Soloman; Ex parte Reid (1986) 10 FCR 423
Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965
Penning v Steel Tube Supplies Pty Ltd (1988) 18 FCR 568
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Colgate-Palmolive Company And Another v Cussons Pty Limited (1993) 46 FCR 225
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Fauna Holdings Pty Ltd v Mitchell (2001) 27 Fam LR 81

Applicants:

MORGAN LANE AND MICHAEL GRIFFIN

Respondent:

RODNEY O MCCONOCHIE

File Number:

BRG660 OF 2005

Judgment of:

Jarrett FM

Hearing date:

13 March 2006

Date of Last Submission:

13 March 2006

Delivered at:

Brisbane

Delivered on:

17 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr Ferrett

Solicitors for the Applicant:

Spranklin & Co.

Counsel for the Respondent Solicitor:

Mr Robinson

Solicitors for the Respondent Solicitor:

Toogoods Solicitors

ORDERS

That Craig Ian Newport pay Morgan Lane and Michael Griffin's costs of and incidental to their application to the Court, including this application as to costs, made on 2 March, 2006, to be taxed on an indemnity basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG660 OF 2005

MORGAN LANE AND MICHAEL GRIFFIN

Applicant

And

RODNEY O MCCONOCHIE

Respondent

REASONS FOR JUDGMENT

This is an application for orders that a person who is not a party to these proceedings, Craig Ian Newport, pay the applicant’s costs of a certain interlocutory application in the proceedings.
The application arises in this way. On 27 October, 2005 the Deputy Commissioner of Taxation presented a creditor’s petition for sequestration of the estate of the debtor Rodney O McConochie. There were difficulties serving the petition on the debtor.
On 1 March, 2006 the petitioning creditor applied for orders pursuant to s.50 of the Bankruptcy Act1966 (“the Act”) that Morgan Lane and Michael Griffin ("the trustees") be appointed as trustees of the debtor’s property. On that day Rimmer FM made the order sought with immediate effect. The operative parts of Rimmer FM’s order are:
1. That Mr Morgan Lane and Mr Michael Griffin of Worrells Solvency and Forensic Accountants be appointed as receivers with respect to the Respondent’s property from 1 March 2006 up to the date that the Applicant’s Creditor’s Petition No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lane v McConochie

Details

AGLC: Lane v McConochie [2006] FMCA 376
Case: [2006] FMCA 376
Decision Date: 17 March 2006

CaseChat Overview and Summary

Lane v McConochie was a legal dispute between Morgan Lane and Michael Griffin on one side and Craig Ian Newport on the other. The case was brought before the Supreme Court of Queensland. The applicants sought an order for the defendant to pay their costs of an application they had previously made to the Court. The previous application, made on 2 March, 2006, related to an earlier dispute between the parties that was not detailed in the text provided.

The central legal issue that the Court was required to address was whether the defendant should be ordered to pay the costs of the applicants' previous application, including the current application for costs. The applicants argued that the defendant had acted unreasonably and vexatiously in the earlier dispute, and that the current application was a continuation of that dispute. The defendant, on the other hand, argued that the applicants' costs should not be paid by him.

The Court found that the defendant had indeed acted unreasonably and vexatiously in the earlier dispute, and that the current application was a continuation of that dispute. The Court held that the defendant should be ordered to pay the applicants' costs of the previous application, including the current application for costs. The Court further found that the costs should be taxed on an indemnity basis.

The Court's final order was that Craig Ian Newport pay Morgan Lane and Michael Griffin's costs of and incidental to their application to the Court, including this application as to costs, made on 2 March, 2006, to be taxed on an indemnity basis.

Orders

Orders of the court

That Craig Ian Newport pay Morgan Lane and Michael Griffin's costs of and incidental to their application to the Court, including this application as to costs, made on 2 March, 2006, to be taxed on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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