Lyford, Maurice Hodgson v Levit, Joseph

[1984] FCA 249

Re: MAURICE HODGSON LYFORD
And: JOSEPH LEVIT
No. WA G11 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Toohey J.
Fisher J.

CATCHWORDS

Practice and Procedure - bankruptcy - costs on appeal - appellant successful - exercise of discretion - basis upon which appeal succeeded not reflected in grounds of appeal - no order as to costs

Federal Court of Australia Act 1976 s.43

Bankruptcy Act 1966 s.32

HEARING

PERTH

#DATE 20:8:1984

ORDER

1. There be no order as to the costs of this appeal.

JUDGE1

When the Court allowed this appeal, counsel for the appellant sought an order that the respondent pay the costs of the appeal. This motion was opposed. As only one member of the Court was present when judgment was delivered, the parties were given leave to file written submissions in support of or in opposition to this application for costs.

2. Section 43 of the Federal Court of Australia Act 1976 confers on the Court a broad discretion in matters of costs, though it is a discretion to be exercised judicially (see also Bankruptcy Act 1966, s.32).

3. In the ordinary course a successful appellant may expect an order for costs in his favour. However, in the particular circumstances of this case, we think it appropriate that there be no order as to costs.

4. Though the respondent succeeded in the Supreme Court in resisting the appellant's application that he pay more than he was then paying, the primary Judge thought it proper that there be no order as to costs. Neither in the notice of appeal, in argument before this Court nor in written submissions did either party contend that this decision should be disturbed. All this may be taken in the particular circumstances of this case as some acceptance of the reasonableness of the proposition that the parties should bear their own costs. In any event, though the appellant succeeded on appeal, he did so largely because of matters raised by the Court in the course of argument. Of the 18 grounds of appeal, none truly reflected the basis upon which the appeal succeeded and, thus, a significant part of the argument in the appeal concerned submissions which were unsuccessful.

5. In all the circumstances we are of opinion that justice would be done if there were no order as to the costs of the appeal.