Nicholls as Trustee of the Property of Hills v Hills

[2004] FCA 1627

FEDERAL COURT OF AUSTRALIA

Nicholls as Trustee of the Property of Hills v Hills [2004] FCA 1627

Bankruptcy Act 1996 (Cth) s 81(12)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Nicholls as Trustee of the Property of Hills v Hills [2004] FCA 333 cited

ALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS AND VIEDA ANN HILLS v HARVEY HILLS AND TONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)

N 7329 OF 2003

TAMBERLIN J
SYDNEY
10 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7329 OF 2003

IN THE MATTER OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS, BANKRUPTS

BETWEEN:

ALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS
APPLICANT

AND:

HARVEY HILLS
FIRST RESPONDENT

TONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

10 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Deputy-Registrar made on 9 December 2003 (the decision being to the effect that pursuant to s 81(12) of the Bankruptcy Act 1966 (Cth) Mr Hills should pay the Trustee the amount of $43,500 together with the amount of $75 per week calculated from 1 February 2003 to the date of payment within 28 days from 9 December) be set aside.

2.Judgment be entered for the Trustee against Mr Hills in an amount of $31,717.33 together with interest from 1 February 2003 to the date of judgment at the rate of 8.97% per annum. 

3.The motion filed on 18 December 2003 is otherwise dismissed.

4.The Trustee pay four-fifths of the costs of Mr Hills in relation to the Motion and the written submissions concerning costs as taxed or agreed. 

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	N7329 OF 2003

IN THE MATTER OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS, BANKRUPTS

BETWEEN:

ALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS AND
VIEDA ANN HILLS
APPLICANT

AND:

HARVEY HILLS
FIRST RESPONDENT

TONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This dispute concerns the payment of costs consequent on a judgment delivered by me on 26 March 2004: see Nicholls as Trustee of the Property of Hills v Hills [2004] FCA 333, where I concluded in favour of the first respondent, who was the applicant on the motion (“Mr Hills”), after considering detailed argument as to whether, in this case, the power to make an order to pay money under s 81(12) of the Bankruptcy Act 1996 (Cth) conferred on the Deputy-Registrar a judicial or an administrative function.  The importance of the question is that it determines whether there is a hearing de novo or whether the review is limited to errors of law.  My conclusion was that the decision of the Deputy-Registrar was not an administrative determination reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but was a permissible exercise of judicial power.

2. I rejected a submission by Mr Hills that there had been a failure to afford procedural fairness by the Deputy-Regisrar not giving any proper reasons for making the order, or by allowing time within which Mr Hills could consider his position.  I was not inclined to set aside the decision of the Deputy-Registrar ordering payment.  However, in the circumstances, and after hearing further submissions from the parties, I decided to stand over the application for further directions to enable the applicant (“the Trustee”), who was the respondent on the motion, to have an opportunity to consider in the administration of the estate the claims and obligations of Mr Hills.  As a consequence of adopting this course, the Trustee further considered the claims of Mr Hills and the position as between the parties has now been resolved.  There was no need for me to make any further determination except in relation to costs. 

3. As Counsel for Mr Hills points out in written submissions made on 12 and 28 July 2004, the solicitors for Mr Hills made an offer to the Trustee to settle the application, prior to the hearing in March, on the basis that the Deputy-Registrar’s order be set aside, and that there be no order as to costs.  The consequence would have been that the debt and the matters in respect of which a proof had been lodged, together with the issue concerning liability in respect of a truck, could have been dealt with in the ordinary course of administration.  This offer was refused. 

4. Each party claims that the other party ought to pay its costs in respect of the application.  

5. In my view, Mr Hills has been substantially successful on the principal matters argued and in my view, the offer made by his solicitors prior to the hearing was a reasonable one.  However, on the other hand, Mr Hills was unsuccessful in respect of some of the arguments advanced.  In light of this I think Mr Hills should not recover all his costs.

6. I have considered the written submissions of both parties, including those in reply on behalf of Mr Hills, and in the circumstances, I am satisfied that the Trustee should pay four-fifths of the costs of Mr Hills as taxed or agreed in relation to the application and the further submissions concerning costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:  

Dated:            10 December  2004

Counsel for the Applicant:	J T Johnson
Solicitor for the Applicant:	Sally Nash & Co
Counsel for the First Respondent:	D Ash
Solicitor for the First Respondent:	A R Walmsley & Co
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Last Written Submissions:	28 July 2004
Date of Judgment:	10 December 2004