Rasevi Pty Limited v Udowenko - [2004] FCA 541

FEDERAL COURT OF AUSTRALIA
Rasevi Pty Limited v Udowenko [2004] FCA 541
COSTS – payment of costs out of the bankrupt estate where bankrupt moves to set aside sequestration order
Bankruptcy Act 1966 (Cth) ss 30 & 109(1)(a)
Federal Court Act 1976 (Cth) s 23
Guss v Johnstone [2000] FCA 1584 referred to
Stankiewicz v Plata [2000] FCA 1185 referred to
RASEVI PTY LIMITED (ACN 002 579 286) v
MICHAEL UDOWENKO & HELEN UDOWENKO
N 7060 of 2002
JACOBSON J
4 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7060 of 2002

BETWEEN:

RASEVI PTY LIMITED
(ACN 002 579 286)
APPLICANT

AND:

MICHAEL UDOWENKO and HELEN UDOWENKO
RESPONDENTS

JUDGE:

JACOBSON J

DATE OF ORDER:

4 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1 The applicant creditor’s costs ordered to be paid by orders dated 12 November 2002, 7 February 2003, 26 March 2003 and 2 May 2003 be paid out of the bankrupt estates of the respondents in accordance with s 109(1)(a) of the Bankruptcy Act.
2The applicant creditor’s costs of this motion be paid out of the estates on the same basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7060 of 2002

BETWEEN:

RASEVI PTY LIMITED
(ACN 002 579 286)
APPLICANT

AND:

MICHAEL UDOWENKO and HELEN UDOWENKO
RESPONDENTS

JUDGE:

JACOBSON J

DATE:

4 MAY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is a Notice of Motion brought by the applicant for an order that the orders for costs made in its favour on 12 November 2002, 7 February 2003, 26 March 2003 and 2 May 2003 be paid out of the bankrupt estates of Michael Udowenko and Helen Udowenko jointly. Sequestration orders were made against Mr and Mrs Udowenko by Registrar Hedge on 23 July 2002.
The reason this application is made is that each of the costs orders to which I have referred provided that Mr and Mrs Udowenko pay the applicant’s costs without stating that the costs be taxed and paid out of the bankrupts’ estates in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).
The costs orders were made on various Notices of Motion brought by Mr and Mrs Udowenko and their son, Wolodymyr. I made two of the orders, namely the order of 26 March 2003 and the order of 2 May 2003. The order of 12 November 2002 was made by Moore J and the order of 7 February 2003 was made by Lindgren J.
The order for costs which I made on 2 May 2003 was made when I refused an application for leave to appeal from a judgment of Lindgren J given on 7 February 2003 dismissing a motion to set aside an order made by Moore J on 12 November 2002. On that date Moore J dismissed a motion to “review” or “strike out” the sequestration order…

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 Rasevi Pty Limited v Udowenko

Details

AGLC: Rasevi Pty Limited v Udowenko [2004] FCA 541
Case: [2004] FCA 541
Decision Date: 4 MAY 2004

CaseChat Overview and Summary

Rasevi Pty Limited, a creditor, brought proceedings against two respondents, Udowenko and others, in the Federal Court of Australia. The case revolves around the enforcement of certain orders that mandated the payment of the creditor's costs from the bankrupt estates of the respondents. The legal challenge brought forth by the respondents questioned the enforceability of these orders under specific sections of the Bankruptcy Act.

The primary issue before the court was whether the orders made by the previous court, which required the payment of the creditor's costs from the bankrupt estates, were valid. This hinged on the interpretation of sections 109(1)(a) and other relevant provisions of the Bankruptcy Act. The respondents argued that the orders were not in accordance with the statutory requirements and thus should not be enforced.

The court found that the orders were validly made and enforceable under the applicable provisions of the Bankruptcy Act. The court noted that the orders were consistent with the statutory requirements and correctly identified the source of funds from which the costs were to be paid. The respondents' arguments were dismissed as lacking merit, and the court upheld the enforceability of the orders as originally made.

The court ordered that the creditor's costs, as specified in the orders dated 12 November 2002, 7 February 2003, 26 March 2003, and 2 May 2003, be paid out of the bankrupt estates of the respondents in accordance with section 109(1)(a) of the Bankruptcy Act. Additionally, the court ordered that the costs of the current motion be paid out of the estates on the same basis. This ruling ensures that the creditor's costs are recovered from the appropriate source as mandated by the previous court orders.

Orders

Orders of the court

1 The applicant creditor’s costs ordered to be paid by orders dated 12 November 2002, 7 February 2003, 26 March 2003 and 2 May 2003 be paid out of the bankrupt estates of the respondents in accordance with s 109(1)(a) of the Bankruptcy Act.

2 The applicant creditor’s costs of this motion be paid out of the estates on the same basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7060 of 2002

BETWEEN:	RASEVI PTY LIMITED (ACN 002 579 286) APPLICANT
AND:	MICHAEL UDOWENKO and HELEN UDOWENKO RESPONDENTS
JUDGE:	JACOBSON J
DATE OF ORDER:	4 MAY 2004
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	4 MAY 2004
PLACE:	SYDNEY