Pascoe v Boensch

[2008] FMCA 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No.7) [2008] FMCA 53

BANKRUPTCY – COSTS – Assessment.

Federal Magistrates Court Rules 2001, Sch 1

Applicant: SCOTT DARREN PASCOE

First Respondent: FRANZ BOENSCH

Second Respondent: SABINE BOENSCH

File number: SYG 1995 of 2006

Judgment of: Raphael FM

Hearing dates: 20 & 21 November 2007

Dates of last submission: 20 & 21 November 2007

Delivered at: Sydney

Delivered on: 23 January 2008

REPRESENTATION

Counsel for the Applicant: Mr J. Johnson

Solicitors for the Applicant: McLean & Associates

Counsel for the First and Second Respondents: Mr M. Heath

Solicitors for the First Respondent: Wright Commercial Lawyers

Solicitors for the Second Respondent: Shanahan Tudhope

ORDERS

1. Applicant to pay the second respondent’s costs limited to the daily hearing fee and part fees contained in Sch 1 of the Federal Magistrates Court Rules 2001 for those days upon which her solicitor attended the hearing of the separate issue. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH

First Respondent

SABINE BOENSCH

Second Respondent

REASONS FOR JUDGMENT

1. On 6 December 2007 I gave judgment in respect of a separate issue in the above proceedings.  The issue which I determined was:

   “Does the Memorandum of Trust constitute a valid declaration of trust or otherwise create or recognise the creation of a valid interest in the property identified as the land and buildings at 255 Victoria Road Rydalmere?”

   I determined the separate question in the affirmative.  I ordered that the trustee pay the costs of the first respondent.  I reserved the costs of the second respondent, who had been represented throughout the entire hearing by a solicitor, so that submissions could be provided to me in writing.  I have now received those submissions.

2. Although Mrs Boensch was represented by a solicitor in the proceedings, she took no active part in them.  She had provided an affidavit and gave evidence.  Otherwise, she adopted the submissions and the evidence of the first respondent through his counsel.  Mrs Boensch argues that she was a separate party to the proceedings and was entitled to separate representation:

   “While their [Mr and Mrs Boensch’s] interests have been aligned with respect to these proceedings, this does not mean that their interests are the same or that such alignment was certain to continue throughout the proceedings.  Accordingly, costs incurred as a consequence of Mrs Boensch’s separate legal representation have been reasonably incurred.”

   I note from an affidavit of Deegan John Fitzharris filed on 13 December 2007 that in August 2006 Mrs Boensch, through her lawyers, sought to obtain the agreement of the trustee that he would not seek costs against her if she entered a submitting appearance.  This offer was declined by the trustee.  Mrs Boensch further argues that if she and Mr Boensch had been unsuccessful in the proceedings she would have been liable for the trustee’s costs.

3. The trustee says that no costs order should be made in favour of Mrs Boensch because she did not file any evidence in relation to the separate issue, did not seek to cross-examine or otherwise test any other evidence relied on in relation to the issue, and did not make any submissions.

4. It seems to me that Mrs Boensch did make an effort to put herself in the position whereby no costs might be ordered in respect of her participation in the proceedings by way of making a submitting appearance. The trustee, having declined that proposal, must accept some risk. I am, however, sensible of the fact that the representation of Mrs Boensch did not involve more than the attendance of her solicitor over the hearing period. The full day hearing fee in this court is $1,500.00 according to Sch 1 of the Federal Magistrates Court Rules 2001. I think that the order that I should make is that the applicant should pay the second respondent’s costs limited to the daily hearing fee and part fees contained in Sch 1 of the Federal Magistrates Court Rules 2001 for those days upon which her solicitor attended the hearing of the separate issue. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  23 January 2008