Manzo v CSM Lawyers Pty Ltd - [2024] FCAFC 96

FEDERAL COURT OF AUSTRALIA
Manzo v CSM Lawyers Pty Ltd [2024] FCAFC 96

Appeal from: CSM Lawyers Pty Ltd v Manzo, in the matter of Manzo [2023] FCA 236

File number: QUD 200 of 2023

Judgment of: LOGAN, PERRY AND MEAGHER JJ

Date of judgment: 16 July 2024

Catchwords: COSTS – where the appellant appeals from a decision of a single judge of this Court to affirm a registrar’s sequestration order against the appellant – where the appellant discontinued the appeal the day before the hearing and was deemed to have made an application to discontinue the appeal with no order as to costs – where the respondent incorporated legal practice sought costs, either on an indemnity basis or party and party basis – whether, in light of Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, the respondent is entitled to costs as an incorporated legal practice representing itself – appellant’s application dismissed – respondent’s application for costs dismissed, except for the awarding of outlays

Legislation:
Bankruptcy Act 1966 (Cth) ss 32, 43

Federal Court of Australia Act 1976 (Cth) ss 24, 43

Federal Court Rules 2011 (Cth) rr 36.73, 40.01, 40.02

Civil Procedure Act 2005 (NSW) ss 3, 98

Cases cited:
Alhalek v Quintiliani trading as Kells Lawyers (No 3) [2021] FCAFC 150

Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312

Attorney-General v Shillibeer (1849) 4 Ex 606 [154 ER 1356]

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Birketu Pty Ltd v Atanaskovic [2024] HCASL 117

Birketu v Castagnet [2022] NSWSC 1435

Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

CSM Lawyers Pty Ltd v Manzo, in the matter of Manzo [2023] FCA 236

London Scottish Benefit Society v Chorley (1884) 13 QBD 872

McIlraith v Ilkin (Costs) [2007] NSWSC 1052

Raymond v Lakeman (1865) 34 Beav 584 [55 ER 761]

Spencer v Coshott (2021) 106 NSWLR 84

Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (No 2) (2021) 388 ALR 540

United Petroleum Australia Pty Ltd v Freehills [2020] VSCA 15

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 27

Date of last submissions: 26 February 2024 (Respondent)
4 March 2024 (Appellant)

Date of hearing: Determined on the papers

Counsel for the Appellant: The appellant appeared in person

Counsel for the Respondent: Mr M Ziebell

Solicitor for the Respondent: Cowen Schwarz Marschke Lawyers

ORDERS

QUD 200 of 2024

BETWEEN:
PETER BRUCE MANZO

Appellant

AND:
CSM LAWYERS PTY LTD ACN 610 321 509 TRADING AS COWEN SCHWARZ MARSCHKE LAWYERS

Respondent

ORDER MADE BY:

LOGAN, PERRY AND MEAGHER JJ

DATE OF ORDER:

16 JULY 2024

THE COURT ORDERS THAT:
1.The appellant’s Notice of Withdrawal of Application, deemed by an order made on 19 February 2024 to be an application for leave to discontinue the appeal on the basis that there be no order…

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.

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Details

Case: [2024] FCAFC 96
Decision Date: 16 July 2024

CaseChat Overview and Summary

Manzo was the appellant in a case against CSM Lawyers Pty Ltd, an incorporated legal practice. The dispute arose from a sequestration order affirmed against the appellant by a registrar, which the appellant had appealed. The appellant subsequently discontinued the appeal and made an application to withdraw it the day before the hearing, which was deemed to be an application for leave to discontinue the appeal with no order as to costs. The respondent, seeking costs, filed an interlocutory application, asking for either indemnity or party and party costs. The court was required to decide whether, in light of Bell Lawyers Pty Ltd v Pentelow, the respondent was entitled to costs as an incorporated legal practice representing itself, and if so, the appropriate basis and amount of those costs.

The court considered that the matter of costs for an incorporated legal practice representing itself had been addressed in Bell Lawyers Pty Ltd v Pentelow. The respondent, as an incorporated legal practice, was not entitled to costs on an indemnity or party and party basis. However, the respondent was entitled to be compensated for its outlays, which would be allowed to any litigant in person in whose favour a costs order was made. The court emphasised that this included costs reasonably incurred in retaining counsel for any appearance or preparation of submissions. The appellant’s application to discontinue the appeal was dismissed, and the respondent's application for costs was dismissed, except for the awarding of outlays.

The court ordered that the appellant’s application for leave to discontinue the appeal, deemed to be made on the basis that there be no order as to costs, was dismissed. The respondent's interlocutory application was also dismissed, except for the allowance of the respondent's outlays as determined by a registrar if not agreed. These outlays included costs reasonably incurred in retaining counsel for any appearance or the preparation of submissions. There was no order as to costs in respect of the appeal, including in respect of either the deemed application for leave to discontinue or the respondent's interlocutory application.

Orders

Orders of the court

1. The appellant’s Notice of Withdrawal of Application, deemed by an order made on 19 February 2024 to be an application for leave to discontinue the appeal on the basis that there be no order as to costs, be dismissed.

2. Subject to this order, the respondent's interlocutory application filed on 26 February 2024 be dismissed.

3. The appellant has leave to discontinue the appeal on terms that the appellant pay the following costs of and incidental to the appeal, including those of the deemed application for leave to discontinue and the respondent’s costs application, as determined by a registrar if not agreed:

(a) the respondent’s outlays, to the extent that such outlays would be allowed to any litigant in person in whose favour a costs order was made; and

(b) for the avoidance of any doubt as to such outlays, the costs reasonably incurred by the respondent (if any) in retaining counsel for the purpose of any appearance or the preparation of any submissions.

4. Save as aforesaid, there be no order as to costs in respect of the appeal, including in respect of either the deemed application for leave to discontinue or the respondent's interlocutory application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	CSM Lawyers Pty Ltd v Manzo, in the matter of Manzo [2023] FCA 236
File number:	QUD 200 of 2023
Judgment of:	LOGAN, PERRY AND MEAGHER JJ
Date of judgment:	16 July 2024
Catchwords:	COSTS – where the appellant appeals from a decision of a single judge of this Court to affirm a registrar’s sequestration order against the appellant – where the appellant discontinued the appeal the day before the hearing and was deemed to have made an application to discontinue the appeal with no order as to costs – where the respondent incorporated legal practice sought costs, either on an indemnity basis or party and party basis – whether, in light of Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, the respondent is entitled to costs as an incorporated legal practice representing itself – appellant’s application dismissed – respondent’s application for costs dismissed, except for the awarding of outlays
Legislation:	Bankruptcy Act 1966 (Cth) ss 32, 43 Federal Court of Australia Act 1976 (Cth) ss 24, 43 Federal Court Rules 2011 (Cth) rr 36.73, 40.01, 40.02 Civil Procedure Act 2005 (NSW) ss 3, 98
Cases cited:	Alhalek v Quintiliani trading as Kells Lawyers (No 3) [2021] FCAFC 150 Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 Attorney-General v Shillibeer (1849) 4 Ex 606 [154 ER 1356] Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 Birketu Pty Ltd v Atanaskovic [2024] HCASL 117 Birketu v Castagnet [2022] NSWSC 1435 Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 CSM Lawyers Pty Ltd v Manzo, in the matter of Manzo [2023] FCA 236 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 McIlraith v Ilkin (Costs) [2007] NSWSC 1052 Raymond v Lakeman (1865) 34 Beav 584 [55 ER 761] Spencer v Coshott (2021) 106 NSWLR 84 Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (No 2) (2021) 388 ALR 540 United Petroleum Australia Pty Ltd v Freehills [2020] VSCA 15
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	27
Date of last submissions:	26 February 2024 (Respondent) 4 March 2024 (Appellant)
Date of hearing:	Determined on the papers
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr M Ziebell
Solicitor for the Respondent:	Cowen Schwarz Marschke Lawyers

ORDER MADE BY:	LOGAN, PERRY AND MEAGHER JJ
DATE OF ORDER:	16 JULY 2024