Rahman v Kent (No 2) - [2025] FCA 129

FEDERAL COURT OF AUSTRALIA
Rahman v Kent (No 2) [2025] FCA 129

File number: NSD 1280 of 2019

Judgment of: STEWART J

Date of judgment: 25 February 2025

Catchwords: PRACTICE AND PROCEDURE – where successful appellant seeks review of a decision by the Registrar to dismiss his application for the release of $25,000 paid into court as security for costs of an appeal – whether that security ought to be released where the appellant was awarded costs on the substantive appeal but was subject to an adverse costs order in the prior interlocutory application for security for costs – whether the security for “the costs of the appeal” included the costs of the interlocutory application – whether the funds in court are reasonably required to secure the costs on the interlocutory application – likely set-off and extinguishment of competing costs awards – piffling sums at stake – funds released

Legislation:
Federal Court of Australia Act 1976 (Cth), ss 35A(5), 37M, 37N

Federal Court Rules 2011 (Cth), rr 2.42, 3.11(2)

Cases cited:
Bechara v Bates [2021] FCAFC 34; 286 FCR 166

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333

Bou-Simon v Attorney-General (Cth) [2003] FCA 1303; 133 FCR 230

Deputy Commissioner of Taxation v Widdup (No 2) [2023] FCA 377

Rahman v Kent [2022] FCA 485

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 30

Date of hearing: 25 February 2025

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: D F Elliott

Solicitor for the Respondent: Kent Attorneys

ORDERS

NSD 1280 of 2019

BETWEEN:
FAHMID RAHMAN

Appellant

AND:
RODNEY KENT AND TIM ORLIZKI (T/A “KENT ATTORNEYS”)

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

25 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The orders of the Registrar on 22 November 2024 be set aside.
2.The sum of $25,000 paid into court by the appellant as security for the respondent’s costs of the appeal, and accrued interest on that sum if any, be released to the appellant.
3.The parties bear their own costs of:
(a)the appellant’s interlocutory application filed on 20 March 2024 and determined by a Registrar on 22 November 2024; and
(b)the appellant’s interlocutory application filed on 18 December 2024.

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

REASONS FOR JUDGMENT
(Delivered ex tempore; revised from the transcript)
STEWART J:

Incredibly, before me is an interlocutory application in an appeal proceeding that was finally determined nearly three years ago in May 2022: Rahman v Kent [2022] FCA 485. It is an application by the appellant, Fahmid Rahman, under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) for the review of the exercise of a power by a Registrar of the Court. Such an application is a hearing de novo; there is no need to identify any error in the Registrar’s decision:

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 Rahman v Kent (No 2)

Details

AGLC: Rahman v Kent (No 2) [2025] FCA 129
Case: [2025] FCA 129
Decision Date: 25 February 2025

CaseChat Overview and Summary

In the matter of Rahman v Kent (No 2), the appellant sought a review of a decision made by the Registrar to dismiss an application for the release of $25,000 that had been paid into court as security for the respondent's costs of an appeal. The dispute centered on whether the funds should be released to the appellant, who had been awarded costs on the substantive appeal but faced an adverse costs order in a prior interlocutory application for security for costs. The central question was whether the security for "the costs of the appeal" included the costs of the interlocutory application, and if the funds in court were reasonably required to secure those costs. The Federal Court examined these issues in light of the likely set-off and extinguishment of competing costs awards, and the relatively small amounts involved.

The court considered the appellant's contention that the security for costs of the appeal should cover the costs of the interlocutory application as well. It noted that the appellant had been successful on the substantive appeal but was subject to an adverse costs order in the interlocutory application. The court reasoned that given the piffling sums at stake, the funds in court were not reasonably required to secure the costs on the interlocutory application. It was determined that the security for costs of the appeal did not include the costs of the interlocutory application, and thus the funds could be released to the appellant.

The court set aside the orders of the Registrar and ordered the release of the $25,000 paid into court by the appellant, along with any accrued interest on that sum. It further directed that the parties bear their own costs of both the interlocutory application filed on 20 March 2024 and the one filed on 18 December 2024. The court's decision underscores the importance of clearly distinguishing between the costs of an appeal and the costs of interlocutory applications, particularly in cases where the sums involved are relatively small.

Orders

Orders of the court

1. The orders of the Registrar on 22 November 2024 be set aside.

2. The sum of $25,000 paid into court by the appellant as security for the respondent’s costs of the appeal, and accrued interest on that sum if any, be released to the appellant.

3. The parties bear their own costs of:

(a) the appellant’s interlocutory application filed on 20 March 2024 and determined by a Registrar on 22 November 2024; and

(b) the appellant’s interlocutory application filed on 18 December 2024.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 1280 of 2019
Judgment of:	STEWART J
Date of judgment:	25 February 2025
Catchwords:	PRACTICE AND PROCEDURE – where successful appellant seeks review of a decision by the Registrar to dismiss his application for the release of $25,000 paid into court as security for costs of an appeal – whether that security ought to be released where the appellant was awarded costs on the substantive appeal but was subject to an adverse costs order in the prior interlocutory application for security for costs – whether the security for “the costs of the appeal” included the costs of the interlocutory application – whether the funds in court are reasonably required to secure the costs on the interlocutory application – likely set-off and extinguishment of competing costs awards – piffling sums at stake – funds released
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 35A(5), 37M, 37N Federal Court Rules 2011 (Cth), rr 2.42, 3.11(2)
Cases cited:	Bechara v Bates [2021] FCAFC 34; 286 FCR 166 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 Bou-Simon v Attorney-General (Cth) [2003] FCA 1303; 133 FCR 230 Deputy Commissioner of Taxation v Widdup (No 2) [2023] FCA 377 Rahman v Kent [2022] FCA 485
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	30
Date of hearing:	25 February 2025
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	D F Elliott
Solicitor for the Respondent:	Kent Attorneys

ORDER MADE BY:	STEWART J
DATE OF ORDER:	25 FEBRUARY 2025