McKellar v PCS Resources Ltd

FEDERAL COURT OF AUSTRALIA

McKellar v PCS Resources Ltd [2002] FCA 123

BANKRUPTCY – application for an interlocutory injunction to stay taxation of a bill of costs until the Trustee in Bankruptcy receives notification of bankruptcy – whether s 60(2) of the Bankruptcy Act 1966 (Cth) operates to stay costs orders made against an applicant prior to bankruptcy

Bankruptcy Act 1966 (Cth) s 60(2), (3)

ANDREW McKELLAR v PCS RESOURCES LTD

N 110 OF 2002

HELY J
14 FEBRUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 110 OF 2002

BETWEEN:	ANDREW McKELLAR APPLICANT
AND:	PCS RESOURCES LTD RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	14 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The proceedings be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 110 OF 2002

BETWEEN:	ANDREW McKELLAR APPLICANT
AND:	PCS RESOURCES LTD RESPONDENT

JUDGE:	HELY J
DATE:	14 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is scheduled to take place at 2.15 pm this afternoon in the Victorian Registry of the Court a taxation of a bill of costs in proceedings number VG 555 of 1998.  Those proceedings were instituted on 13 October 1998 by Mr Andrew McKellar and Mr Christopher Murray as applicants (“the applicants”) against a number of respondents.

2. On 13 August 1999 and on 26 November 1999 Weinberg J made orders for costs against the applicants in relation to interlocutory motions and directed that the costs could be taxed and should be paid forthwith.  It is the costs ordered to be paid pursuant to those orders which are the subject of taxation this afternoon.  The sum involved, I am told, is of the order of $45,000.

3. On 23 May 2000 the second applicant was made bankrupt. It is the contention of the remaining applicant, Mr Andrew McKellar, that the effect of s 60(2) of the Bankruptcy Act 1966 (Cth) (“the Act”) is to stay proceedings number VG 555 of 1998 until the Trustee in Bankruptcy receives the notification referred to in that section. I am informed by Mr Baran, counsel for the applicant, from the bar table that his instructing solicitors first became aware of the fact of Mr Murray's bankruptcy on 29 January 2002. Mr O'Grady of Minter Ellison, who appeared by telephone to oppose this application, is content for me to proceed for the purposes of this application upon the basis that what I have been told by Mr Baran accords with the fact.

4. Some proceedings took place before Weinberg J on 1 February 2002 which touched and concerned, amongst other things, this issue of a stay.  Those proceedings have not been finally determined as his Honour allowed the parties time to lodge written submissions.

5. The application for taxation of the bill of costs was made on 9 January 2002 and the appointment for hearing this afternoon was…