Re Berlouis, H.L. & Ors Ex parte Berlouis, H.L. & Ors v Adsett, N

[1991] FCA 858

' r i . 85% Q\,

JJDGMENT NO. .---a-

IN THE F E D E W COURT OF AUSTRALIA	)
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. QB 716 of 1991

- S )

RE:  HARRY LOUIS BERLOUIS. RAYMOND LOUIS
LIONEL JEAN BERLOUIS

Bankrupts

EX PARTE:  HARRY LOUIS BERLOUIS. RAYMOND LOUIS
BERLOUIS. ARMANDE CELISCA BERLOUIS AND
LIONEL JEAN BERLOUIQ

Applicants

NOEL ADSETT

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J
:	-	13 DECEMBER 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

124 of the Bankruptcy Rules.

1.    There be no order with respect to the costs reserved by Spender J. on 5 June 1991.

Settlement and entry of orders is dealt with in Rule

THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	1 No. QB 716 of 1991
STATE OF OUEENSLAND	1

HARRY LOUIS BERLOUIS. RAYMOND LOUIS BERLOUIS.
FdUANDE CELISCA BERLOUIS AND LIONEL JEAN

BERLOUIS

Bankrupts

EX PARTE:  HARRY LOUIS BERLOUIS, RAYMQND LOUIS BERLOUIS.
WMANDE CELISCA BERLOUIS AND LIONEL JEAN
BERLOUIS

Applicants

NOEL ADSETT

Respondent

m: PINCUS J.

M: BRISBANE

m: 13 DECEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application to deal with reserved costs.

The general nature of the proceedings can be found by

examining the transcript of the hearing in question, which

took place on 5 June 1991. The background of the matter is
dealt with in the reasons for judgment I gave recently, but it
i e necessary to add that on 5 June the competing contentions
were concerned with the obligation of the bankrupts to produce
books to the trustee and an attempt on the part of the
bankrupts to force the calling of a meeting of creditors. The
latter point came to a head, so to speak, or came to a
practical conclusion, at page 29 of the transcript, when the

trustee's counsel indicated the trustee's preparedness to call

a meeting on certain conditions.

The ultimate result was that the trustee was directed

to call a meeting on conditions which were not as stringent as
those which had been suggested. The discussion as to costs
was rather desultory. The Judge suggested the parties, as his
Honour put it, "either have to get their costs or wear their
costs", and he thought that both parties had had qualified
success. Counsel then agreed that the costs should be
reserved. Counsel for the trustee remarked, "We can't think
of any order that won't fall back on the creditors, anyway".

In the event, the question which arises is not so much

of the order falling back on the creditors but its falling
back on the bankrupts. Mr Matthews, who has appeared for the
bankrupts today, suggests that whatever I do I should deal
with the question of these reserved costs and, of course, he
would wish me to deal with them in a way which is favourable

to his side. Under Order 1 rule 11 of the Federal Court

Rules, the general rules, if I can call them that, do not

apply to proceedings under the Bankru~tcv Act 1966; therefore

it appears to me that the provision to which Mr Matthews was
good enough to refer me which deals with reserved costs
generally, that is Order 62 rule 15, is inapplicable. I have

not been able to find, and I do not think there is, a similar

rule in the Bankru~tcv Rulee, so that the costs remaining

reserved will not be dealt with at all unless the Court makes
some order about them.

My own view of the matter is coloured somewhat by the

impression I formed of the attitude of the trustee, Mr Adsett. Now, in this particular case, having read the transcript, I am unable to form the conclusion that Mr Adsett's position on 5

June 1991 was indefensible. The trial judge described both parties as having had qualified success, and of course I respect his Honour's view.

The attitude which was taken by Mr Dutney QC, who then lead for the bankrupts, was that the costs should be reserved because the factual issues ought to be resolved in other

proceedings. I am not absolutely certain what were the
factual issues to which Mr Dutney alluded. But, in fact, no
factual issues have really been resolved in subsequent
proceedings. The only substantial issue which I resolved in
the other proceedings, apart from costs, was the question of
the validity of the compositions. Therefore, if it is the
case, as Mr Dutney suggested, that it all depended on the

resolution of some factual issues, then I cannot use that. I

therefore fall back upon the view which the Judge who reserved

the costs, Spender J., had, and that is that both parties had
qualified success. In those circumstances it seems to me that
the only order I should make is to say that there will be no
order with respect to the costs reserved by Spender J. on 5
June 1991. That is, neither side will be ordered to pay the
other side's costs of those proceedings. I do not propose to
make any further order and any other matter arising out of it
will, regrettably, have to be left to the taxation.

I certify that the three

preceding pages are a true
copy of the reasons for
judgment herein of Mr

Justice Pincus

. --7

c-. W=-,. lxT ~ . Y Y C . L - -

Associate