Parker v Official Trustee in Bankruptcy

[1995] FCA 215

IN THE FEDERAL COURT OF AUSTRALIA     )
BANKRUPTCY DISTRICT OF THE STATE )  No.  N 1486 of 1992
OF NEW SOUTH WALES              )

Re:LESLIE JAMES PARKER

Bankrupt

Ex Parte:LESLIE JAMES PARKER & KERRY JOHN PARKER

Applicants

And:OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

EINFELD J                 SYDNEY             31 MARCH 1995

It is unnecessary for present purposes to deal in detail with the history of this matter, already adequately set out in any of the several judgments by different Judges of this Court in the matter over the last six months.  It is sufficient for present purposes to say that the applicants have been unsuccessful in their repeated attempts to prevent or delay first the sale of properties, then the distribution of funds in the estate of Leslie James Parker (the bankrupt) to the creditors.  The remaining issue is costs. 

This issue has been the subject of considerable written submission by both sides, but essentially the relevant facts are simple.  The applicant has made repeated application to the Court for injunctions restraining the administration of his estate.  Despite some limited success on an ex parte interlocutory basis, he has failed to follow up these applications with any real evidence and each effort has failed.  The nett result is that the trustee has been put to expense and trouble for what appears now to have been at best illconceived, at worst a complete furphy.  It is therefore unarguable that the trustee should at least be compensated by law for the cost of the exercise, however futile such a hope is in fact.  I therefore order that the trustee's costs be paid by the bankrupt from the estate.

The trustee also applies for the costs incurred since 13 December 1994 to be assessed an a full indemnity basis, on the basis that the interim injunction sought and granted on that day was allowed to lapse without any real attempt by the applicant to present a case for its further extension.  The injunction lapsed on 11 January 1995.  However in the circumstances of this case, and in the absence of any indication of capricious or deliberately obstructive behaviour, as opposed to mere legal ignorance, I decline this application.