Mailau v Kennards Hire Pty Ltd (No.2) - [2015] FCCA 3232

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAILAU v KENNARDS HIRE PTY LTD (No.2)

[2015] FCCA 3232

Catchwords:
COSTS – Whether former bankrupt who obtained an order annulling bankruptcy should pay the creditor’s costs – whether former bankrupt misconducted himself – whether former bankrupt’s conduct necessitated the hearing of the former debtor’s claim for annulment – former bankrupt ordered to pay creditor’s costs on a party and party basis.

BANKRUPTCY – Trustees – remuneration – whether Court has power to fix trustee’s remuneration.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30(1)(b), 153B, 154(1)(b), 154(2), 162, 162(1), 162(4), 178
Bankruptcy Regulations 1996 (Cth), regs.8.09, 8.10, 8.11

Pascoe v Liprini & Anor [2013] FCCA 1958
Re Walker [2005] NSWSC 557; (2005) 221 ALR 320
Young, In the matter of Macryannis [2011] FCA 1272

Applicant:

TEVITA MAILAU

Respondent:

KENNARDS HIRE PTY LTD
(ACN 001 740 727)

File Number:

SYG 1214 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

20 February 2015

Delivered at:

Sydney

Delivered on:

4 December 2015

REPRESENTATION

Solicitors for the Applicant:

Mr D Robens of
Kamy Saeedi Law appeared by telephone

Counsel for the Respondent:

Mr D Robertson

Solicitors for the Respondent:

BBW Lawyers

Solicitor for the Trustees:

Ms B Saini

ORDERS

The applicant (Tevita Mailau), pay the respondent creditor’s (Kennards Hire Pty Ltd) costs of the application filed on 1 October 2014.
The costs referred to in order 1 are set in the amount of $13,900.
Tevita Mailau’s application that Kennards Hire Pty Ltd pay the costs of the application filed on 1 October 2014 is dismissed.
Tevita Mailau pay the costs of:
(a)the application for costs Kennards Hire Pty Ltd filed on 3 February 2015; and
(b) the application for costs Tevita Mailau filed on 2 February 2015.
The application in a case filed by Andrew Aravanis and Ronil Prakash Roy is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1214 of 2014

TEVITA MAILAU

Applicant

And

KENNARDS HIRE PTY LTD (ACN 001 740 727)

Respondent

REASONS FOR JUDGMENT

Introduction

On 18 December 2014 I made an order that the bankruptcy of Mr Mailau, the applicant, be annulled pursuant to s.153B of the Bankruptcy Act 1966 (Cth) (Act).[1] I also granted the parties liberty to apply for an order for costs. Both Mr Mailau and the respondent (Kennards) have applied for orders for costs. In addition, the trustees seek an order that Mr Mailau pay to them $10,525, being fees the trustees claim they earned from 20 August 2014 to 18 December 2014.
[1] Mailau v Kennards Hire Pty Ltd [2014] FCCA 2959

The respective submissions in support of cost orders

Kennards seeks an order that Mr Mailau pay all of its costs, and that he pay Kennard’s costs on an indemnity basis. Kennards relies on two matters. First, Mr Mailau misconducted himself. Kennards submitted that his application was based on testimony which I did not accept, and my not accepting Mr Mailau’s evidence was tantamount to a finding that Mr Mailau lied. Second, based on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mailau v Kennards Hire Pty Ltd (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 3232
Decision Date: 4 December 2015

CaseChat Overview and Summary

In *Mailau v Kennards Hire Pty Ltd (No.2)*, the Federal Court of Australia considered an application by the former bankrupt for an order annulling their bankruptcy, and the creditor's opposition to this application. The dispute centred on whether the former bankrupt should be ordered to pay the creditor's costs of the annulment proceedings, and whether the former bankrupt had misconducted themselves in a manner that necessitated the hearing.

The primary legal issue before the Court was whether the former bankrupt's conduct warranted an order for costs against them on a party and party basis, despite the successful annulment of the bankruptcy. A secondary issue, though not central to the final orders, concerned the Court's power to fix a trustee's remuneration.

Judge Manousaridis found that the former bankrupt's conduct had indeed necessitated the hearing of the annulment claim, and that this conduct justified an order for costs against them. The Court reasoned that the former bankrupt had not acted with sufficient candour or diligence, leading to a situation where the creditor was compelled to oppose the annulment application. Consequently, the Court ordered the former bankrupt to pay the creditor's costs on a party and party basis.

Orders