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 |
| 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…
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- Case
- [2019] FCCA 2063
- Decision Date
CaseChat Overview and Summary
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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