Nilant v Macchia - [2000] FCA 1414

FEDERAL COURT OF AUSTRALIA
Nilant v Macchia [2000] FCA 1414
PRACTICE & PROCEDURE – Costs – application for costs certificate – where Full Court allowed appeal on a question of law and remitted matter to primary judge for further consideration – whether costs certificates should be granted in respect of appeal and on the remitted hearing – whether “further consideration” amounts to a new trial.
Federal Proceedings (Costs) Act 1981, s 6 & 8
Bankruptcy Act 1966, s 33(1)(c) and s 149(3)
CHARLES PHILIPPE LOUIS NILANT as trustee of the bankrupt estate of Mario Silverio Macchia v MARIO SILVERIO MACCHIA
WAG 51 of 1997
SPENDER, CARR, FINN JJ
PERTH
9 OCTOBER 2000

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
APPELLANT

AND:

MARIO SILVERIO MACCHIA
RESPONDENT

JUDGE:

SPENDER, CARR, FINN JJ

DATE OF ORDER:

9 OCTOBER 2000

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 WAG 51 of 1997 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 an appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal in pursuance of an order by the Full Court.

2.Pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal WAG 51 of 1997 a costs certificate in respect of the new trial, 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 that appeal, in respect of such part as the Attorney-General considers appropriate, of the costs incurred by that party in relation to the new trial.

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

JUDGE:

SPENDER, CARR, FINN JJ

DATE:

9 OCTOBER 2000

PLACE:

PERTH

REASONS FOR JUDGMENT

This is a notice of motion by Mario Silverio Macchia, who will be referred to as the Bankrupt, filed in appeal WAG 51 of 1997 seeking orders that:
“1.Pursuant to s 6 of the Federal Proceedings (Costs) Act a certificate be granted to the Respondent in respect of the appeal.
2.Pursuant to Section 8 of the Federal Proceedings (Costs) Act a…

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

Details

AGLC: Nilant v Macchia [2000] FCA 1414
Case: [2000] FCA 1414
Decision Date: 9 OCTOBER 2000

CaseChat Overview and Summary

In the Full Court of the Federal Court, Nilant was the appellant and Macchia was the respondent. The matter involved a dispute regarding costs certificates for an appeal that was subsequently remitted for further consideration. The Full Court was required to decide whether costs certificates should be granted both for the appeal and for the remitted hearing, and whether the "further consideration" amounted to a new trial for the purposes of awarding costs.

The legal issues before the court were whether the remitted hearing constituted a new trial for the purpose of awarding costs, and if so, whether the respondent was entitled to a costs certificate for the appeal and for the remitted hearing. The court needed to interpret the relevant provisions of the Federal Proceedings (Costs) Act 1981 to determine the appropriate allocation of costs.

The Full Court found that the remitted hearing constituted a new trial, thereby entitling the respondent to a costs certificate for the new trial. Additionally, the Full Court held that the respondent was also entitled to a costs certificate for the appeal. The court emphasised that the remitted hearing was akin to a new trial, thus justifying the award of costs for both the appeal and the remitted hearing. The Full Court granted the costs certificates under the provisions of the Federal Proceedings (Costs) Act 1981, specifying that the Attorney-General should authorise payment for the costs incurred by the respondent in relation to both the appeal and the new trial.

The Full Court made clear orders granting the respondent a costs certificate for the appeal and for the new trial, directing the Attorney-General to authorise payment of the respondent's costs as specified. This decision ensures that the respondent is compensated for the costs associated with both the appeal process and the subsequent remitted hearing.

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 WAG 51 of 1997 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 an appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal in pursuance of an order by the Full Court.

2. Pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal WAG 51 of 1997 a costs certificate in respect of the new trial, 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 that appeal, in respect of such part as the Attorney-General considers appropriate, of the costs incurred by that party in relation to the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER, CARR, FINN JJ

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Ratio Decidendi

Legal Principle Established

Established by: SPENDER, CARR, FINN JJ

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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 APPELLANT
AND:	MARIO SILVERIO MACCHIA RESPONDENT
JUDGE:	SPENDER, CARR, FINN JJ
DATE OF ORDER:	9 OCTOBER 2000
WHERE MADE:	PERTH

JUDGE:	SPENDER, CARR, FINN JJ
DATE:	9 OCTOBER 2000
PLACE:	PERTH