Lowbeer v De Varda

Lowbeer v De Varda is an appeal from a decision of the Federal Circuit Court that dismissed creditor's petitions based on certificates of taxation and a costs order made in favour of Mr Lowbeer against Mr De Varda. The primary judge found that in truth and reality, no debt was due and payable because costs had been incurred by a third party. The appeal raised issues about the principles to be applied when a court is invited to go behind a judgment to determine whether in truth and reality there was a debt behind the judgment relied upon as the basis for the petition. It also considered whether a costs agreement existed between Mr Lowbeer and the solicitor acting in the proceedings where a costs order was obtained.

The court found no factual error in the primary judge's finding that Mr Lowbeer had not been paid by the Congregation. It also found no error in the primary judge's rejection of the claim that the third party had paid the costs in recognition of an obligation to indemnify Mr Lowbeer. The court concluded that it had not been demonstrated that the decision by the Federal Circuit Court was in error.

The appeals were dismissed. Mr De Varda was ordered to pay Mr Lowbeer's costs of the appeal, confined to those costs which may be recovered by a litigant in person, with liberty to apply within 14 days to vary the order as to costs.