Lawrence v Sammut (No 2) - [2023] FedCFamC2G 980

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lawrence v Sammut (No 2) [2023] FedCFamC2G 980

File number(s): SYG 346 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 1 November 2023

Catchwords: BANKRUPTCY – Costs – application for review of Registrar’s order dismissing an application for costs by a party seeking taxation of costs following the objector’s electing at the time the matter had been set down for taxation to withdraw objections – whether the Registrar has delegated power to order costs in those circumstances – Registrar had such power – whether on review the Court was in a position to exercise discretion to order costs – Court not in a position to exercise discretion because Court not satisfied the objector would have elected to withdraw objections had he known that he would or may be liable for costs – matter listed for further directions.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 174(2)(b), 192, 214, 254, 256

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 13.01

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r 13.01

Federal Court Rules 2011 (Cth) Pt 40, rr 40.17, 40.18, 40.19, 40.20, 40.21, 40.23, 40.24, 40.25, 40.26, 40.27, 40.28, 40.29, 40.31, 40.32, 40.33, 40.34

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 21.01

Cases cited:
Buckland v Watts [1970] 1 QB 27

Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449

Conlan v Mladenis [2007] FCA 1129

Elders Trustee and Executor Company Ltd; Estate of Howard v Estate of Herbert (1996) 132 FLR 24

Lawrence v Sammut [2021] FCCA 1929

Lawrence v Sammut [2021] FedCFamC2G 84

Re Grant, Bulcraig & Co [1906] 1 Ch 124

Division: General

Number of paragraphs: 43

Date of hearing: 19 October 2023

Place: Sydney

The Applicant: Appeared in person

Counsel for the Respondents: Mr A Spencer

Solicitor for the Respondents: McLean & Associates Solicitors
ORDERS

SYG 346 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF WAYNE JAMES LAWRENCE

BETWEEN:
WAYNE JAMES LAWRENCE

Applicant

AND:
ALICE ALEXANDRIA SAMMUT

First Respondent

PAUL WILLIAM CIANTAR

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

1 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The matter be listed for a directions hearing at 9:30 am on 22 November 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The respondents apply for the review of a Registrar’s order made on 26 April 2023 dismissing an application the respondents made…

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 Lawrence v Sammut (No 2)

Details

AGLC: Lawrence v Sammut (No 2) [2023] FedCFamC2G 980
Case: [2023] FedCFamC2G 980
Decision Date: 1 November 2023

CaseChat Overview and Summary

The case of Lawrence v Sammut (No 2) involved a dispute between the applicant, Lawrence, and the objector, Sammut. The matter before the Court was an application for review of an order made by a Registrar dismissing an application by the applicant for costs following the objector’s election to withdraw objections to the taxation of costs. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issues the Court needed to address were whether the Registrar had the authority to dismiss the application for costs and whether the Court, on review, had the discretion to order costs. The Court had to determine whether the Registrar had the power to dismiss the application and whether, in reviewing the Registrar’s decision, it could exercise its own discretion to order costs. The Court also had to consider whether it was satisfied that the objector would have elected to withdraw objections if they had known that they would or may be liable for costs.

The Court found that the Registrar had the power to dismiss the application for costs. However, upon reviewing the Registrar’s order, the Court concluded that it was not in a position to exercise its discretion to order costs. The Court reasoned that it was not satisfied that the objector would have elected to withdraw objections had they known they would or may be liable for costs. As a result, the Court was unable to exercise its discretion to order costs.

The Court ordered that the matter be listed for a directions hearing at 9:30 am on 22 November 2023. This order reflects the Court's intention to further direct the parties on the next steps in the proceedings, considering the findings on the Registrar’s power and the Court's discretion.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The matter be listed for a directions hearing at 9:30 am on 22 November 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 346 of 2021
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	1 November 2023
Catchwords:	BANKRUPTCY – Costs – application for review of Registrar’s order dismissing an application for costs by a party seeking taxation of costs following the objector’s electing at the time the matter had been set down for taxation to withdraw objections – whether the Registrar has delegated power to order costs in those circumstances – Registrar had such power – whether on review the Court was in a position to exercise discretion to order costs – Court not in a position to exercise discretion because Court not satisfied the objector would have elected to withdraw objections had he known that he would or may be liable for costs – matter listed for further directions.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 174(2)(b), 192, 214, 254, 256 Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 13.01 Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r 13.01 Federal Court Rules 2011 (Cth) Pt 40, rr 40.17, 40.18, 40.19, 40.20, 40.21, 40.23, 40.24, 40.25, 40.26, 40.27, 40.28, 40.29, 40.31, 40.32, 40.33, 40.34 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 21.01
Cases cited:	Buckland v Watts [1970] 1 QB 27 Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449 Conlan v Mladenis [2007] FCA 1129 Elders Trustee and Executor Company Ltd; Estate of Howard v Estate of Herbert (1996) 132 FLR 24 Lawrence v Sammut [2021] FCCA 1929 Lawrence v Sammut [2021] FedCFamC2G 84 Re Grant, Bulcraig & Co [1906] 1 Ch 124
Division:	General
Number of paragraphs:	43
Date of hearing:	19 October 2023
Place:	Sydney
The Applicant:	Appeared in person
Counsel for the Respondents:	Mr A Spencer
Solicitor for the Respondents:	McLean & Associates Solicitors

SYG 346 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF WAYNE JAMES LAWRENCE
BETWEEN:	WAYNE JAMES LAWRENCE Applicant
AND:	ALICE ALEXANDRIA SAMMUT First Respondent PAUL WILLIAM CIANTAR Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	1 NOVEMBER 2023