Lindsay v Meissner

[2019] FCA 987

FEDERAL COURT OF AUSTRALIA

Lindsay v Meissner [2019] FCA 987

File number:

NSD 2173 of 2018

Judge:

STEWART J

Date of judgment:

21 June 2019

Date of publication of reasons:

26 June 2019

Catchwords:

PRACTICE AND PROCEDURE – Costs – whether costs should be awarded against respondent – whether costs should follow the event – respondent to bear costs on party-party basis

Legislation:

Bankruptcy Act 1966 (Cth) s 43

Federal Court Rules 2011 (Cth) rr 40.01, 40.02

Cases cited:

Meissner v Lindsay [2016] NSWSC 790

Date of hearing:

17, 21 June 2019

Registry:

New South Wales

Division:

General

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

L Clarke

Solicitor for the Applicant:

E Berman & Co

Counsel for the Respondent:

The Respondent appeared in person

ORDERS

NSD 2173 of 2018

BETWEEN:

PAMELA LINDSAY

Applicant

AND:

LADISLAUS (JOE) MEISSNER

Respondent

JUDGE:	STEWART J
DATE OF ORDER:	21 JUNE 2019

THE COURT ORDERS THAT:

1.The creditor’s petition filed on 16 November 2018 is dismissed.

2.The respondent is to pay the applicant’s costs of the proceeding on a party-party basis as taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

STEWART J:

1. There are two issues before me today. The first is that the applicant seeks costs on a party-party basis as provided for in r 40.01 of the Federal Court Rules 2011 (Cth) (FCR). The second is that the applicant applies for a lump sum costs order pursuant to r 40.02 of the FCR. During the course of argument, when it became apparent that the evidence that the applicant adduced in support of the lump sum costs order was, in certain respects, confusing and insufficient, the applicant withdrew the application for the lump sum costs order, leaving only the question of the costs of the proceeding to be decided.

2. By a creditor’s petition filed on 16 November 2018, the applicant sought the sequestration of the estate of the respondent under s 43 of the Bankruptcy Act 1966 (Cth). That order was sought on the basis that the respondent owes the applicant the sum of $112,674.56 for moneys due under a judgment of the Supreme Court of New South Wales dated 22 June 2018. That judgment was made in relation to a costs order made against the respondent for proceedings he commenced against the estate of the late Sharon Meissner. The reasons for the judgment which gave rise to the costs order are reported as Meissner v Lindsay [2016] NSWSC 790 (the Supreme Court proceedings).

3. On receipt of the costs judgment sounding in money, the applicant commenced bankruptcy proceedings against the respondent.  To that end, a bankruptcy notice dated 17 July 2018 was issued.  In September and October 2018, numerous efforts were made to effect service of the bankruptcy notice on the respondent at his residential address in Windsor,…