Macks, Peter Ivan as Trustee of the Bankrupt Estate of Donka Gorcilov v Ekena Pty Ltd

[1998] FCA 1071

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 7074 of 1998

IN THE MATTER OF DONKA GORCILOV

BETWEEN:

PETER IVAN MACKS
AS TRUSTEE FOR THE BANKRUPT ESTATE OF DONKA GORCILOV
APPLICANT

AND:

EKENA PTY LTD
FIRST RESPONDENT

MACQUARIE INVESTMENT MANAGEMENT LIMITED
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	28 AUGUST 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:  On 4 August 1998 I dealt with two applications made by the applicant, first the application on motion for judgment in default of defence and, secondly, the outstanding issue as to costs in respect of the respondent’s application made orally for variation of the Mareva order.  I made orders for costs in favour of the applicant on each of those matters.

I declined an order which the applicant then sought under O 62 r 3 of the Federal Court Rules for those costs to be taxed forthwith and for the costs as taxed to be paid forthwith.  I did so principally because, at that time, the matter was listed for trial on 19 August 1998 and I did not see the demands of justice in those circumstances required an order under O 62 r 3 departing from the general rule, as it was then expected that the trial would proceed and be dealt with promptly.  Notwithstanding that, in other respects it seemed to me that it may have been appropriate to make an order under that rule.  In particular, as I then mentioned, the issues in respect to which the orders for costs were made were discrete issues, severable from the principal proceeding and the issues to which it will be addressed.  I reserved liberty to the applicant to renew that application if the trial did not proceed as then contemplated.

In fact, the matter did not proceed to trial on 19 August 1998.  That was through no fault of the applicant.  It was a consequence of the difficulty of the respondent in being able to proceed to trial because its then solicitor was intending no longer to act for it, and it had procured another solicitor who was still considering whether or not to accept its instructions.  It now has no solicitor acting for it, although its former solicitor is still technically on the record.  He has not attended today and I understand from Mr Tomaras, the director of the respondent, that he is not expected to attend further on behalf of the company.

It is not clear when the trial will now be able to take place.  In those circumstances, in particular having regard to the considerations which I addressed previously, and the demands of justice, in my view it is appropriate that I now make an order under O 62 r 3 and I do so.  I have been handed minutes of order and I will make an order in terms of the minutes as altered and initialled by me.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant:  Ms S Maharaj
  with her
  Mr B Roberts

Solicitors for the Applicant:  Kelly & Co

Mr P Tomaras appears on behalf of the First Respondent

Date of Hearing:  28 August 1998

Date of Decision:  28 August 1998