Marneros v Korakas
[2007] FMCA 2129
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARNEROS & ANOR v KORAKAS & ANOR | [2007] FMCA 2129 |
| BANKRUPTCY – Costs of Petitioning Creditor – where petition dismissed after payment. |
| Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicants: | TONY MARNEROS & NICOLE PEARCE |
| Respondent: | PETER KORAKAS (AKA PANAGIOTAS KORAKAS) AND GEORGE KORAKAS TRADING AS CONDAG CONSTRUCTIONS |
| File number: | SYG 3108 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 December 2007 |
| Date of last submission: | 18 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Star Carver and Sons |
| Counsel for the Respondent: | Mr D Allen |
| Solicitors for the Respondent: | Proctor & Associates |
ORDERS
Applicant to pay Respondent’s costs to be taxed if not agreed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3108 of 2007
| TONY MARNEROS & NICOLE PEARCE |
Applicants
And
| PETER KORAKAS & (AKA PANAGIOTIS KORAKAS) AND GEORGE KORAKAS T/AS CONDAG CONSTRUCTIONS |
Respondent
REASONS FOR JUDGMENT
This matter has been referred to me by Registrar Hedge who dismissed an application for a sequestration order on the basis that the debt had been paid. Normally when this occurs the petitioning creditor would be entitled to his costs. The application before me is not just for those costs to be paid on a normal basis but for them to be paid on an indemnity basis. The debtor, on the other hand, seeks an order for his costs to be paid.
Mr Carver, who appears for the creditor, has filed an affidavit which contains a bundle of correspondence passing between his firm and that of the debtor. It shows that Mr Carver's office has made a series of attempts to obtain payments of the amount claimed in the petition and that such payment was not received until very late in the day when the petition was about to be heard. Mr Carver has also attempted in his correspondence to obtain payment of his costs and there are a number of letters relating to that matter in which the amount of costs has moved around from $15,000.00 to $9,500.00 to $8,200.00 all of which sums are considerably in excess of the amount allowed under a short form bill, being $1,948.00 plus disbursements. Mr Carver seeks indemnity costs on the basis that the efforts that he has made were outside the normal and that whilst the respondent has always said that he was solvent it has taken until the last trump to obtain payment from him. Whilst I sympathise with Mr Carver and his client's position and one cannot criticise him for the efforts which he made to obtain the payment, I do not see there is anything out of the ordinary in relation to this case that would warrant me making an order for indemnity costs against the respondents.
On the other hand there is absolutely nothing in the papers that I have seen which would suggest that the successful creditor should pay the costs of the debtor. True it is that the money was paid and, true it is, that it was promised. But there was a long wait between the promise and the payment and it may well be that if Mr Carver had not taken the steps which he did no payment would have been received. Mr Carver urges me to make an assessment of the costs. Mr Allen has said nothing about that. The difficulty I have with making such an assessment is judging what might be reasonable fees for the preparation of the creditor’s petition and the extent to which any taxation sum payment for the work done for the preparation of the bankruptcy notice etcetera should be taken into account. So what I propose to do is this. I will make a suggested figure. If that is not accepted by Mr Allen on behalf of his client I will order that costs be taxed.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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