Macks v Morris (No.2)
[2003] FMCA 241
•3 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MACKS v MORRIS (No.2) | [2003] FMCA 241 |
| BANKRUPTCY – COSTS – where the applicant did not succeed in the full amount of its claim – where the respondent conceded at hearing that an amount was owed – where no offers of compromise were made – where the costs should follow the event. |
Bankruptcy Act 1966 (Cth), ss.120,121 and 122
J McPhee & Son (Australia) Pty Ltd & Ors v ACCC (2000) FCA 754
ACCC v Black on White Pty Ltd & Ors (2001) FCA 372
| Applicant: | PETER IVAN MACKS AS TRUSTEE OF BANKRUPT ESTATE OF GREGORY MORRIS |
| Respondent: | SUSANNE CATHERINE MORRIS |
| File No: | AZ 217 of 2002 |
| Delivered on: | 3 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | Costs heard by submissions sent to Chambers |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A Dalcin |
| Solicitors for the Applicant: | Lancione Partners |
| Counsel for the Respondent: | Mr P McQuade |
| Solicitors for the Respondent: | Bickell & Mackenzie Solicitors |
ORDERS
Respondent to pay the applicant’s costs to be taxed, if not agreed, in accordance with the Federal Court Act 1976 (Cth) and Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 217 of 2002
| PETER IVAN MACKS AS TRUSTEE OF BANKRUPT ESTATE OF GREGORY MORRIS |
Applicant
And
| SUSANNE CATHERINE MORRIS |
Respondent
REASONS FOR JUDGMENT
By judgment dated 3 June 2003 I made orders requiring the respondent to pay the applicant the sum of $23,494.43. This was slightly less than one half of the amount originally demanded. At the time of the proceedings the respondent conceded that she would have to return at least $4,494.43.
I gave the parties an opportunity to provide me with written submissions concerning costs so that I could take into account these submissions and any offers of compromise that might have been made and which had not yet been drawn to my attention. In the event no offers of compromise appeared to have been made.
The applicant is the trustee of a bankrupt estate. The trustee has a duty to recover monies which it believes were transferred to a third party in breach of ss.120, 121 or 122 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). No criticism could be made of the trustee for bringing these proceedings although the facts revealed that the applicant herself did not obtain any benefit from the transfer other than the $4,494.43 previously referred to.
The respondent argues that each party should pay its own costs because this would properly reflect the measure of success obtained by each party (J McPhee & Son (Australia) Pty Ltd & Ors v ACCC (2000) FCA 754; ACCC v Black on White Pty Ltd & Ors (2001) FCA 372). I have considered those cases but I do not believe they are relevant to the present situation. The fact is that if the applicant had not commenced these proceedings he would have recovered nothing against the respondent. He succeeded in recovering $23,494.43 of which, by any account, the respondent should have paid $4,494.43 on demand.
I am satisfied that in this case the costs should follow the event. The applicant succeeded in his claim even if he did not recover the full amount. The respondent resisted making any payment to the applicant. The proceedings were necessary even to recover the limited amount that was recovered. The trustee is under an obligation to bring these proceedings when it is appropriate. The estate of the bankrupt should not be depleted by costs for such recovery.
I order that the respondent pay the applicant’s costs to be taxed, if not agreed, in accordance with the Federal Court Act 1976 (Cth) and Rules.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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