Mandalinic v Stone (Liquidator) (No 2)

FEDERAL COURT OF AUSTRALIA

Mandalinic v Stone (Liquidator) (No 2) [2023] FCAFC 176

Appeal from:

Stone (Liquidator), in the matter of Ric Admin Pty ltd (in liq) v Mandalinic [2022] FCA 1346

File number(s):

NSD 1022 of 2022

Judgment of:

STEWART, MCELWAINE AND BUTTON JJ

Date of judgment:

6 November 2023

Catchwords:

COSTS – where successful intervener seeks his costs of the appeal – where intervention was necessary, efficient and of considerable assistance – appellant to pay costs of the respondents and intervener

Cases cited:

City of Burnside v Attorney-General of South Australia (1994) 63 SASR 65

Mandalinic v Stone (Liquidator) [2023] FCAFC 146

Division:

General Division

Registry:

New South Wales

National Practice Area:

Taxation

Number of paragraphs:

5

Date of last submission/s:

4 September 2023 (Respondent)
11 September 2023 (Appellant)
18 September 2023 (Intervener)

Date of hearing:

Determined on the papers

Solicitor for the Appellant:

D Mitchell of Kerrs

Counsel for the Respondents:

J Baird

Solicitor for the Respondents:

SLF Lawyers

Counsel for the Intervener:

L Livingston SC and K Josifoski

Solicitor for the Intervener:

Craddock Murray Neumann Lawyers

ORDERS

NSD 1022 of 2022

BETWEEN:

JOHN MANDALINIC

Appellant

AND:

RICHARD STONE IN HIS CAPACITY AS LIQUIDATOR OF RIC ADMIN PTY LTD (IN LIQUIDATION) ACN 603 418 908

First Respondent

RIC ADMIN PTY LTD (IN LIQUIDATION)

Second Respondent

DEPUTY COMMISSIONER OF TAXATION

Intervener

ORDER MADE BY:	STEWART, MCELWAINE AND BUTTON JJ
DATE OF ORDER:	6 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appellant is to pay the respondents’ and the intervener’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. For the reasons published on 4 September 2023, we dismissed the appeal in this matter and made consequential orders for the determination of any costs applications on the papers: Mandalinic v Stone (Liquidator) [2023] FCAFC 146 (Primary Reasons).  The respondents apply for the usual costs order.  The Deputy Commissioner of Taxation as intervener seeks his costs. The appellant resists each application and submits that each party should bear their own costs on the basis that whilst unsuccessful in the appeal overall, he did achieve some measure of success “in resisting orders being made that he was in breach of” s 198G of the Corporations Act 2001 (Cth). These reasons assume familiarity with the Primary Reasons.

2. There is no merit in the appellant’s submission. The usual order is that an unsuccessful appellant must pay the costs of an appeal. It is normally unproductive and distracting to resolve the costs of an appeal issue by issue. There is no reason to depart from the usual order in this case. The primary judge determined four separate questions at the request of the parties and the intervener: Primary Reasons at [70]. The third concerned whether an affidavit made by the appellant on 29 October 2021 (Revocation Affidavit) and filed in the Supreme Court proceeding was filed in breach of s 198G of the…