Nilant (Trustee) v Macchia - [2003] FCAFC 95

FEDERAL COURT OF AUSTRALIA
Nilant (Trustee) v Macchia [2003] FCAFC 95
COSTS – section 7 of the Federal Court Proceedings (Costs) Act 1981 (Cth) – whether there can be a present inability to pay a costs order for the purposes of that Act, where the obligation to pay the costs has been released
Federal Court Proceedings (Costs) Act 1981 (Cth) ss 6, 7, 8, 12
Bankruptcy Act 1966 (Cth) ss 178, 179
Federal Court Rules O 62 r 45, O 62 r 46
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 cited
Re CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia
No WAG 51 of 1997
SPENDER, CARR, FINN JJ
PERTH
19 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 51 OF 1997

BETWEEN:

CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia
APPLICANT

AND:

MARIO SILVERIO MACCHIA
RESPONDENT

JUDGES:

SPENDER, CARR, FINN JJ

DATE OF ORDER:

19 MAY 2003

WHERE MADE:

PERTH

THE COURT DECLINES to grant to Charles Philippe Louis Nilant a costs certificate pursuant to s 7 of the Federal Proceedings (Costs) Act 1981 (Cth), in respect of Appeal No WAG 51 of 1997.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 51 OF 1997

BETWEEN:

CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia
APPLICANT

AND:

MARIO SILVERIO MACCHIA
RESPONDENT

JUDGES:

SPENDER, CARR, FINN JJ

DATE:

19 MAY 2003

PLACE:

PERTH

REASONS FOR JUDGMENT
THE COURT:

This is a notice of motion by Charles Philippe Louis Nilant (“the trustee”) filed in Appeal WAG 51 of 1997 seeking an order:
“Pursuant to section 7 of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the appellant to appeal WAG 51 of 1997 a costs certificate in respect of that appeal, the certificate to state that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under this Act to the appellant in respect of the costs incurred by the Appellant in relation to that appeal.”
Section 7 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”) provides:
“Costs certificates for appellants – Federal appeals
7. (1) Subject to this Act, where:
(a)a respondent to a Federal appeal is, in pursuance of an order of a court, required to pay to an appellant any costs (in this section referred to as the ‘relevant costs’) incurred by the appellant in relation to the appeal; and
(b)under subsection 6(1) or (2), the respondent is entitled to apply to the court for a costs certificate in respect of the appeal;
the court, on the application of the appellant, may, if it is satisfied that:
(c)the respondent is, by reason of lack of means, unable to pay…

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.

Continue reading Nilant (Trustee) v Macchia

Details

AGLC: Nilant (Trustee) v Macchia [2003] FCAFC 95
Case: [2003] FCAFC 95
Decision Date: 19 MAY 2003

CaseChat Overview and Summary

In the Federal Court, Nilant (Trustee) sought to recover costs from Macchia following a successful litigation. The trustee was appointed following the liquidation of a company, which had previously been a party to the litigation. The court was required to determine whether Macchia, who had been released from the obligation to pay costs due to the liquidation, could be considered presently unable to pay costs under section 7 of the Federal Court Proceedings (Costs) Act 1981 (Cth).

The court considered whether the release of Macchia from his obligation to pay costs could result in a present inability to pay those costs. The trustee argued that the release from liability did not negate the possibility of a present inability to pay. The court examined the language of section 7 and whether it permitted the consideration of the present ability to pay in circumstances where the obligation to pay had been released. It concluded that the release from liability did not prevent an assessment of present ability to pay, and the question of present inability was to be determined by reference to the facts as they stood at the time of the application.

The court found that Macchia could not demonstrate a present inability to pay the costs order. As a result, the application for relief from the costs order was dismissed. The court ordered that Macchia pay the costs of the trustee's application.

Orders