Official Trustee in Bankruptcy v Mateo

[2003] FCAFC 97

FEDERAL COURT OF AUSTRALIA

Official Trustee in Bankruptcy v Mateo [2003] FCAFC 97

BANKRUPTCY – Costs of appeal.

OFFICIAL TRUSTEE IN BANKRUPTCY v CORAZON BES MATEO, JEREMY MATEO, JENNIFER JOY MATEO and JUSTIN JAMES MATEO

N 310 of 2002

WILCOX, BRANSON and MERKEL JJ
21 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 310 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

OFFICIAL TRUSTEE IN BANKRUPTCY
APPELLANT

AND:

CORAZON BES MATEO
FIRST RESPONDENT

JEREMY MATEO
SECOND RESPONDENT

JENNIFER JOY MATEO
THIRD RESPONDENT

JUSTIN JAMES MATEO
FOURTH RESPONDENT

JUDGES:

WILCOX, BRANSON and MERKEL JJ

DATE OF ORDER:

21 MAY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appellant, Official Trustee in Bankruptcy, pay to the respondents, Corazon Bes Mateo, Jeremy Mateo, Jennifer Joy Mateo and Justin James Mateo, their costs of the appeal.

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	N 310 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

OFFICIAL TRUSTEE IN BANKRUPTCY
APPELLANT

AND:

CORAZON BES MATEO
FIRST RESPONDENT

JEREMY MATEO
SECOND RESPONDENT

JENNIFER JOY MATEO
THIRD RESPONDENT

JUSTIN JAMES MATEO
FOURTH RESPONDENT

JUDGE:	WILCOX, BRANSON and MERKEL JJ
DATE:	21 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT REGARDING COSTS

THE COURT:

1. We delivered judgment in this appeal on 28 February 2003.  All members of the Court thought the appeal ought to be dismissed and we so ordered.  However, we reserved the matter of costs and gave leave to the parties to file submissions concerning any application for costs.  We took that course because our reasons for dismissing the appeal differed from the reasons of the primary judge in holding against the appellant, Official Trustee in Bankruptcy.  The Court had determined some issues in the appeal more favourably to the appellant than did his Honour.

2. The successful respondents sought costs of the appeal, arguing in written submissions that costs ought to follow the event.  In any case, they said, the basis upon which they succeeded was covered by their submissions both at the trial and on appeal.

3. The appellant made a written submission that the Court ought to make the costs of the appeal, and the hearing before Tamberlin J, abide the outcome of any application made by the appellant pursuant to s 79A of the Family Law Act 1975; alternatively, that the Court should leave each of the parties to the present appeal to pay their own costs.

4. We have considered the arguments advanced on each side in relation to costs.  We have reached the conclusion that we ought to order the appellant to pay the respondents’ costs of the appeal.  The respondents have succeeded in resisting the appeal on a basis that, we agree, was covered by their submissions.  It is true that many of their other submissions were rejected.  It is also true that the Official Trustee might yet succeed in obtaining some relief against the respondents, by an application in the Family Court.  But these are not reasons for depriving the respondents of the costs of their successful opposition to the appeal.

5. No doubt it is also true, as observed by counsel for the appellant, that the appeal raised issues of general importance and the decision will provide guidance to trustees generally as to the proper procedure to be followed in cases like this.  However, it often happens that a decision in one case has significance beyond the immediate parties.  That has never been regarded as a sufficient reason to deprive a successful non-government party of the costs of the case.

6. We propose to order that the appellant, Official Trustee in Bankruptcy, pay to the respondents their costs of the appeal.

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

Associate:

Dated:             21 May 2003

Counsel for the Appellant:	P Taylor SC with PB Walsh
Solicitor for the Appellant:	Sally Nash & Co
Counsel for the Respondents:	PL Brereton SC with DP Ash
Solicitor for the Respondents:	Belen Oag, Solicitors
Date of Hearing:	28 August 2002