Pekar v Jess (Trustee) (No 4)

[2021] FCA 534

FEDERAL COURT OF AUSTRALIA

Pekar v Jess (Trustee) (No 4) [2021] FCA 534  

File number(s):

VID 81 of 2017

Judgment of:

KERR  J

Date of judgment:

19 May 2021

Catchwords:

COSTS – application for an alternative order as to costs following judgment in Pekar v Jess (Trustee) (No 3) [2021] FCA 466 – application rejected

Cases cited:

Holden, As Trustee of The Bankrupt Estate of Pekar v Pekar (No.6) [2020] FCCA 3385

Pekar v Jess (Trustee) (No 3) [2021] FCA 466

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

31

Date of last submission/s:

18 May 2021

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mrs Pekar in person

Solicitor for the Respondent:

Rothwell Lawyers

ORDERS

VID 81 of 2017

BETWEEN:

IDA PEKAR

Applicant

AND:

TIMOTHY MARK SHUTTLEWORTH HOLDEN AS TRUSTEE FOR THE BANKRUPT ESTATE OF FIMA PEKAR

Respondent

ORDER MADE BY:	KERR  J
DATE OF ORDER:	19 MAY 2021

THE COURT ORDERS THAT:

1.Notwithstanding the Respondent having sought orders alternatively to that provided for in Order 2 of the Courts reasons of 6 May 2021 the Applicant be awarded costs in the sum of $2,000.

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

REASONS FOR JUDGMENT

KERR J:

1. On 6 May 2021 the Court delivered judgment and published its reasons in Pekar v Jess (Trustee) (No 3) [2021] FCA 466 (Pekar No 3). 

2. Pekar No 3 was a decision in respect of the Applicant's application for review of a taxation of costs. The Court set the Certificate of Taxation aside and in lieu thereof ordered that the Respondent be awarded his costs in a lesser sum. 

3. An order was made, subject to either party seeking an alternative order, that the Respondent pay the Applicant’s costs in the sum of $2,000. That was the cost of the filing fee the Applicant incurred for filing an application for review of the taxation. The Court ordered that if any alternative order was sought the Court would determine that question on the papers.

4. The Respondent has sought an alternative order as to costs: he submits that the Applicant should be ordered to pay the Respondent’s costs on an indemnity basis; or on the ordinary party-party basis; or that there be no order as to costs at all.

5. These reasons assume a familiarity with those the Court delivered in Pekar No 3. They are to be read in conjunction with those reasons.

6. The Applicant did not take the occasion to seek an alternative costs order—however she has filed an affidavit in which she alleges there has been continuing failure of Rothwell Lawyers to comply with orders of this Court. In that affidavit she also requests the Court to make an order referring Rothwell Lawyers’ conduct to the Victorian Legal Services Commissioner for disciplinary charges of professional misconduct.

7. I reject that what is asserted in the Applicant’s affidavit is relevantly…