Murphie v Vita Domus Pty Ltd - [2019] FCCA 2063

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURPHIE v VITA DOMUS PTY LTD

[2019] FCCA 2063

Catchwords:
BANKRUPTCY – Bankruptcy notice set aside by consent – application to review costs order made by a registrar.

Legislation:

Bankruptcy Act 1966 (Cth), s.32

Federal Circuit Court of Australia Act 1999 (Cth), ss.79, 104

Federal Circuit Court Rules 2001 (Cth), r.20.03

Cases cited:

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Kazar (Liquidator) v Kargaran; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113
Martin v Commonwealth Bank of Australia [2001] HCA 87; (2001) 217 ALR 634
O’Neill v FSS Trustee Corporation [2015] NSWSC 1248
One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193
Tran v Pu [2015] FCA 97; (2015) 228 FCR 562

Zdrilic v Hickie [2016] FCAFC 101; (2016) 246 FCR 532

Applicant:

MATTHEW MURPHIE

Respondent:

VITA DOMUS PTY LTD

File Number:

SYG 505 of 2018

Judgment of:

Judge Barnes

Hearing date:

30 July 2018

Delivered at:

Sydney

Delivered on:

30 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Walker

Solicitors for the Applicant:

Sparke Helmore

Solicitors for the Respondent:

Hunt & Hunt

ORDERS

(1) Order 2 made by District Registrar Wall on 1 May 2018 be set aside.
(2) Vita Domus Pty Ltd pay the costs of Mr Matthew Murphie in relation to the application to set aside Bankruptcy Notice No. BN221667 to be fixed in accordance with Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
(3) The parties file an agreed calculation of costs in accordance with Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) within 14 days of today’s date or, if unable to agree, each party file and serve a written submission of no more than 2 pages calculating such costs.
(4) There be no order as to costs in relation to the review application.

(1) FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney

SYG 505 of 2018

Mathew Murphie

Applicant

And

Vita Domus Pty Ltd

Respondent

REASONS FOR JUDGMENT

The Application

1. On 23 February 2018 Mr Matthew Murphie filed an application in this court seeking that Bankruptcy Notice No. BN221667 issued on 5 February 2018 on the application of the Respondent, Vita Domus Pty Ltd (Vita Domus) be set aside with costs.
2. On 1 May 2018 a registrar of this court made an order by consent setting aside the bankruptcy notice. That left in issue the question of costs. The registrar ordered that Vita Domus pay Mr Murphie’s costs of the application to set aside the bankruptcy notice “as agreed or taxed”.
3. Vita Domus sought review of the exercise of…

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: [2019] FCCA 2063
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of *Murphie v Vita Domus Pty Ltd*, heard before Judge Barnes, the dispute concerned an application to review a costs order made by a registrar. The applicant, Mr Matthew Murphie, sought to set aside a bankruptcy notice issued by Vita Domus Pty Ltd. Following a consent order to set aside the bankruptcy notice, a costs order was made by the District Registrar. Mr Murphie subsequently applied to review this costs order.

The primary legal issue before the court was whether the costs order made by the District Registrar was appropriate, particularly in light of the consent to set aside the bankruptcy notice. The court was required to determine the correct approach to awarding costs in circumstances where a bankruptcy notice is set aside by agreement between the parties, and whether the registrar had erred in their original determination of costs.

Judge Barnes reasoned that the registrar's costs order was not made in accordance with the relevant rules and principles. Given that the bankruptcy notice was set aside by consent, the usual presumption that the party setting aside the notice should recover their costs was applicable. The court found that the registrar had failed to properly apply this principle and had made an error in the original costs determination. Consequently, the court set aside the registrar's order.

The court ordered that Vita Domus Pty Ltd pay Mr Murphie's costs in relation to the application to set aside the bankruptcy notice, to be fixed in accordance with the Federal Circuit Court Rules. The parties were directed to file an agreed calculation of these costs within 14 days, or to make written submissions if agreement could not be reached. There were no orders as to costs in relation to the review application itself.

Orders

Orders of the court

ORDERS

(1) Order 2 made by District Registrar Wall on 1 May 2018 be set aside.

(2) Vita Domus Pty Ltd pay the costs of Mr Matthew Murphie in relation to the application to set aside Bankruptcy Notice No. BN221667 to be fixed in accordance with Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

(3) The parties file an agreed calculation of costs in accordance with Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) within 14 days of today’s date or, if unable to agree, each party file and serve a written submission of no more than 2 pages calculating such costs.

(4) There be no order as to costs in relation to the review application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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