FEDERAL COURT OF AUSTRALIA Nilant v Macchia [2001] FCA 340
PRACTICE AND PROCEDURE – costs – application for costs certificate – Full Court allowed appeal on a question of law – whether costs certificate should be granted in respect of appeal – whether respondent could or should be required to give undertaking to apply any funds received pursuant to such certificate to pay the appellant’s costs.
CHARLES PHILLIPPE LOUIS NILANT v MARIO SILVERIO MACCHIA W 62 of 2000
HILL, CARR & WEINBERG JJ 30 MARCH 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 62 OF 2000
BETWEEN:
CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia Appellant
AND:
MARIO SILVERIO MACCHIA Respondent
JUDGES:
HILL, CARR & WEINBERG JJ
DATE OF ORDER:
30 MARCH 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal W 62 of 2000 a costs certificate in respect of that appeal, stating that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of:
(a)the costs incurred by the respondent in relation to that appeal; and
(b)any costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal pursuant to an order of the Full Court.
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
W 62 OF 2000
BETWEEN:
CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia Appellant
AND:
MARIO SILVERIO MACCHIA Respondent
JUDGES:
HILL, CARR & WEINBERG JJ
DATE:
30 MARCH 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
THE COURT:
On 27 October 2000 we published our reasons for allowing the appeal in this matter. In summary, we held that the learned primary judge had erred in law in holding that the reference to “Proceedings” in s 306 of the Bankruptcy Act 1966 (Cth) extended to the making out and filing of a statement of affairs and that a failure to comply with s 54 of that Act was a “formal defect” or “irregularity” capable of rectification by s 306. The parties were ordered to file and serve minutes of orders and submissions in relation to any other further orders.
On 6 December 2000, for short reasons then delivered, we ordered that his Honour’s costs order, made on 27 April 2000, be set aside and that the respondent pay the appellant’s costs of the proceedings at first instance and of the appeal. The respondent, by notice of motion, now seeks a costs certificate in respect of the appeal to the effect that it would in our opinion be appropriate…
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 v Macchia
Sign in free to access the full text
Details
AGLC
Nilant v Macchia [2001] FCA 340
Case
[2001] FCA 340
Decision Date
CaseChat Overview and Summary
Nilant, the appellant, was involved in a legal dispute with Macchia, the respondent, which was heard by the Full Court of the Federal Court. The nature of the dispute involved a costs certificate concerning an earlier appeal (W 62 of 2000) that the respondent had initiated. The court was tasked with determining whether the respondent should be granted a costs certificate under the Federal Proceedings (Costs) Act 1981, which would allow the Attorney-General to authorise payment of the costs incurred in that appeal.
The legal issues before the court centred around the appropriate conditions under which a costs certificate could be granted. Specifically, the court had to consider whether the respondent was entitled to be reimbursed for the costs incurred during the appeal and if the appellant's costs, paid by the respondent, should also be considered. The court had to weigh the statutory provisions against the principles of fairness and justice in the context of the Federal Proceedings (Costs) Act 1981.
The Full Court concluded that it was appropriate for the Attorney-General to authorise payment of the respondent's costs incurred in the appeal, as well as any costs the appellant had incurred that the respondent had been required to pay pursuant to an order of the court. The reasoning of the court was based on the statutory provisions of the Federal Proceedings (Costs) Act 1981 and the necessity to ensure that the respondent could adequately cover the financial burden of the appeal. This decision was made in light of the overarching principles of fairness and justice in the legal proceedings.
Orders
Orders of the court
1. Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal W 62 of 2000 a costs certificate in respect of that appeal, stating that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of:
(a) the costs incurred by the respondent in relation to that appeal; and
(b) any costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal pursuant to an order of the Full Court.