Maher v CBA
[2005] FMCA 1097
•28 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHER v CBA & ORS | [2005] FMCA 1097 |
| PRACTICE AND PROCEDURE – Bankruptcy – costs where bankruptcy notice set aside by consent – whether creditor entitled to costs of adjournment. |
| Applicant: | DENNIS MAHER |
| First Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| Second Respondent: | GREG FIRTH |
| Third Respondent: | GRAY & JOHNSON (A FIRM) |
| File Number: | MLG 652 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Gaber |
| Solicitors for the Applicant: | Rothwell Lawyers |
| Counsel for the Respondent: | Mr. R. D. Shepherd |
| Solicitors for the Respondent: | Alison Harewood Solicitors |
ORDERS
BY CONSENT:
That the bankruptcy notice number VN 234 of 2005 issued 14 February 2005 be set aside.
IT IS FURTHER ORDERED:
That the applicant's solicitor be granted leave to file a notice of appearance by 5.00 pm on 29 July 2005 and otherwise be granted leave to appear this day.
The Applicant shall pay the Respondents' costs of and incidental to the adjournments of 30 May and 20 July 2005 fixed in the total sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 652 of 2005
| DENNIS MAHER |
Applicant
And
| COMMONWEALTH BANK OF AUSTRALIA |
First Respondent
And
| GREG FIRTH |
Second Respondent
And
| GRAY & JOHNSON (A FIRM) |
Third Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant by an application filed 18 March 2005 had sought to set aside a bankruptcy notice, and without reciting all the details of the proceedings it is clear that a number of adjournments were granted, and when the matter was called on for hearing this day the Court was advised that the matter had been resolved at least in the substantive sense that a consent order was sought that the bankruptcy notice number VN 234 of 2005 issued 14 February 2005 be set aside.
I will make that order.
As a procedural matter, I granted leave to the applicant's solicitor to file a notice of appearance and otherwise be heard in this Court, noting that until now there is no solicitor on record acting for and on behalf of the applicant. The respondents, despite consenting to an order that the bankruptcy notice be set aside, have sought an order for costs arising from a number of adjournments. Those adjournments occurred on 11 April 2005, 30 May 2005, 18 July and 20 July 2005 and costs are sought for counsel's fees on each and every one of those occasions. The applicant's representative has sought to argue that the bankruptcy notice should never have been issued in the first place and as a result of recent proceedings in the Federal Court it should have been clear to the creditors that this notice should not have been issued. It is difficult in matters of this kind to determine whether or not a concession should be made at an early point by a creditor in relation to a bankruptcy notice where I am satisfied the precise point ultimately determined which has persuaded the creditor to consent to the order this day was not determined until recently.
Normally costs follow the event. In this case the applicant has not been represented and it is not appropriate, in my view, in the absence of affidavit material or a solicitor on record for an order to be made in favour of the applicant's costs. In exercising the Court's discretion, however, in relation to reserved costs following adjournments to which I have referred, it is submitted on behalf of the applicant that I should take into account the circumstances of adjournment. On 11 April 2005 it is argued that the applicant then sought an adjournment in order to obtain legal representation. It is argued that on 30 May 2005 pro bono counsel then first appeared to give advice and, perhaps understandably, sought to on behalf of the applicant further adjourn the matter.
A further date of 18 July in fact was a hearing before this Court when it was clear that the matter, having been referred from the Registrar’s Court to my Court, that the matter could not have been heard and determined, and hence that date, in my view, is not a date where costs would be ordered in favour of the respondents. The remaining date of 20 July 2005 is a date when pro bono counsel as a courtesy advised the Court that he was seeking to withdraw and that the applicant was then not available due to receiving treatment in Sydney for an illness. Hence, the general proposition that costs follow the event is not particularly relevant in the present application as the issues that are remaining for determination by this Court really relate to reserved costs of the adjournments to which I have referred.
When adjournments are granted, albeit upon application by one party, the issue of reserving costs is usually an issue which then can be resolved upon hearing the parties or at least determining issues that may unfold during the hearing. In this case, I have not really had the benefit of a great deal of detail as to what may or may not have occurred during those adjournments save I note the affidavit of Sean Peter Langhorn sworn 27 July 2005 relied upon by the respondents, which in the absence of any contrary affidavit material I accept as being a factual basis for at least understanding the chronology of events. I do not intend to recite that chronology in this judgment.
Doing the best I can on the material before me, it seems that the first application was indeed a genuine application on the part of an unrepresented applicant to seek legal advice, and given the nature of the consent order that is now being made, I do not believe it will be in the interests of justice to then impose the costs burden on the applicant as a result of that first adjournment.
The second adjournment on 30 May 2005 appears at least in part to be an adjournment to assist the applicant to better understand the application and the issues and to otherwise take steps which ultimately appeared fruitful in another place. Nevertheless, I am satisfied at least part of those costs that were incurred by the respondent as a result of that adjournment should be borne by the applicant.
Ultimately the adjournment of 20 July 2005 was an adjournment granted in circumstances which were really peculiar to the applicant's position, and then ultimately as a result of the Federal Court proceedings which occurred thereafter, the applicant's position was somewhat strengthened on grounds not previously raised formally in the material before this Court.
In all the circumstances I am satisfied that it is not appropriate to award costs sought for 11 April 2005, part only of the costs sought for 30 May 2005 and I am prepared to accept that costs should be awarded for 20 July 2005. On the material before me I am satisfied that an appropriate amount for the costs, that is, part costs of 30 May 2005 and costs which I will fix for 20 July 2005, should be respectively $600.00 and $1,400.00, making a total of $2,000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 July 2005
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