Pekar v Jess (Trustee) (No 2) - [2020] FCA 1346

FEDERAL COURT OF AUSTRALIA
Pekar v Jess (Trustee) (No 2) [2020] FCA 1346

File number: VID 81 of 2017

Judgment of: MOSHINSKY J

Date of judgment: 18 September 2020

Catchwords: PRACTICE AND PROCEDURE – costs – where the respondents’ interlocutory application was successful – whether any basis to depart from the usual rule that costs follow the event

Cases cited: Minister for Immigration and Border Protection v CQZ15 (No 2) (2018) 259 FCR 569

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 6

Date of last submissions: 11 September 2020

Date of hearing: Determined on the papers

Counsel for the Appellant: Mr V Murano

Solicitor for the Respondents: Rothwell Lawyers

ORDERS

VID 81 of 2017

BETWEEN:
IDA PEKAR

Appellant

AND:
MATTHEW JAMES JESS AND MATTHEW KUCIANSKI AS JOINT TRUSTEES IN BANKRUPTCY FOR THE ESTATE OF FIMA PEKAR

Respondents

ORDER MADE BY:

MOSHINSKY J

DATE OF ORDER:

18 SEPTEMBER 2020

THE COURT ORDERS THAT:
1.Paragraph 2(a) of the orders dated 28 August 2020 be set aside.
2.The appellant pay the respondents’ costs of the interlocutory application dated 23 September 2019, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MOSHINSKY J:

On 28 August 2020, I published reasons for judgment in relation to an interlocutory application dated 23 September 2019: Pekar v Jess (Trustee) [2020] FCA 1250. These reasons, which deal with costs, should be read together with those reasons. I will adopt the abbreviations used in the 28 August 2020 reasons.
Paragraph 2(a) of the orders made on 28 August 2020 stated that, subject to paragraph (b), there be no order as to costs (in relation to the interlocutory application). Paragraph 2(b) stated that, if either party sought a different costs order, the party could file and serve a written submission within seven days; in that event, the other party could within a further seven days file a responding submission, and the issue of costs would be determined on the papers.
Pursuant to those orders, the Trustees filed a submission seeking a costs order in their favour. The Trustees submitted that the usual rule that costs follow the event should apply to the interlocutory application, in respect of which they were successful.
Mrs Pekar filed a responding submission, by which she contended that the appropriate order was that there be no order as to costs. Mrs Pekar highlighted the following facts and matters: (a) any need for the interlocutory application to be filed arose solely because the Former Trustee breached his agreement with Mr Pekar (see, eg, Minister for Immigration and Border Protection v CQZ15 (No 2) (2018) 259 FCR 569 at [4]); (b) as observed in the 28 August 2020 reasons at [51]-[52], in the administration of the Mr Pekar’s estate, “the total amount incurred by way of trustee remuneration and expenses is very troubling”; and (c) it may not even be…

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 Pekar v Jess (Trustee) (No 2)

Details

AGLC: Pekar v Jess (Trustee) (No 2) [2020] FCA 1346
Case: [2020] FCA 1346
Decision Date: 18 September 2020

CaseChat Overview and Summary

The appeal before the court involved Pekar, the appellant, and Jess (Trustee), the respondent. The dispute centred on the assessment of costs incurred during an interlocutory application, specifically the application dated 23 September 2019. The appellant sought to challenge the orders made by the primary judge, which included the allocation of costs in favour of the respondents. The matter was heard in the Federal Court of Australia.

The primary legal issue the court needed to address was whether there was any justification for departing from the established legal principle that costs generally follow the event. The appellant argued that the usual rule should not apply in this instance due to specific circumstances of the case. The respondents, on the other hand, contended that the standard rule was appropriate and should be upheld.

The court carefully considered the arguments presented by both parties. It was determined that the respondents' interlocutory application was successful and there were no exceptional circumstances that warranted a departure from the usual cost-following rule. Consequently, the appeal was dismissed, and the original orders were upheld with a modification to paragraph 2(a) of the orders dated 28 August 2020. The court also mandated that the appellant pay the respondents' costs of the interlocutory application dated 23 September 2019, as either agreed upon or assessed according to the Federal Court Rules 2011.

Orders

Orders of the court

1. Paragraph 2(a) of the orders dated 28 August 2020 be set aside.

2. The appellant pay the respondents’ costs of the interlocutory application dated 23 September 2019, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	VID 81 of 2017
Judgment of:	MOSHINSKY J
Date of judgment:	18 September 2020
Catchwords:	PRACTICE AND PROCEDURE – costs – where the respondents’ interlocutory application was successful – whether any basis to depart from the usual rule that costs follow the event
Cases cited:	Minister for Immigration and Border Protection v CQZ15 (No 2) (2018) 259 FCR 569
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	6
Date of last submissions:	11 September 2020
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Mr V Murano
Solicitor for the Respondents:	Rothwell Lawyers

ORDER MADE BY:	MOSHINSKY J
DATE OF ORDER:	18 SEPTEMBER 2020