Re Dacey, Les Ex parte Chick & Kev Distributors Pty Ltd - [1981] FCA 46

Re: LES DACEY
Ex parte: CHICK & KEV DISTRIBUTORS PTY. LIMITED (1981) 51 FLR 389
No. W 384 of 1979
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Lockhart J.(1)

CATCHWORDS

Bankruptcy - taxation of costs - application by petitioning creditor to review taxation of bill of costs - taxing officer disallowed claims for an allowance when a solicitor acts as counsel and for travelling time to and from court - whether taxing officer committed error of principle.

Costs - Taxation of costs in bankruptcy jurisdiction - Claim for costs of solicitor appearing as counsel - Claim for solicitor's travelling time from outer suburb - Whether taxing officer erred in principle - Bankruptcy Rules, rr. 170, 171, 173.

HEADNOTE

A sequestration order was made against Dacey. The petitioning creditor's solicitor filed a bill of costs which included an item for the solicitor's appearance as counsel at the hearing of the petition, and items for the solicitor's time in travelling from his outer suburban practice to the court.

Held: (1) In relation to the solicitor's appearance as counsel, the taxing officer had not committed an error of principle. Accordingly the exercise of his discretion to refuse to allow the item would not be disturbed.

(2) In relation to the claims for travelling time, the item in r. 171 (5) did not contemplate the time spent travelling within the suburbs of a city, but rather travel between cities where necessary.

HEARING

Sydney, 1981, April 22; May 1. #DATE 1:5:1981

P. Bell, for the applicant.

V. D. Summerhayes (Registrar in Bankruptcy), for the respondent.

Solicitors for the applicant: David G. Francis & Co.

J. W. K. BURNSIDE

ORDER

The application be dismissed.

Application dismissed.

JUDGE1

This is an application to review the decision of a Deputy Registrar in Bankruptcy disallowing certain items on the taxation of a bill of costs.

A sequestration order was made by this Court against the estate of Les Dacey ("the bankrupt") on 8 May 1979 on the petition of Chick & Kev Distributors Pty. Limited ("the petitioning creditor"). The petitioning creditor's solicitors filed their bill of costs which was taxed on 19 February 1980. The certificate of taxation issued on 18 April 1980. The bill of costs covered the work generally carried out by a solicitor for a petitioning creditor but, in addition, included three items which the taxing officer disallowed. They are described in the application as follows:-

(a) " 8.5.1979 23 (a) Allowance under Rules 170 (4) and 171 (4) for Solicitor acting as Counsel $40.00."

(b) " 22 (b) Travelling time to and from Court for hearing (2 hours) (Rule 171 (5)) $40.00."

(c) "19.2.1980 30 (b) Travelling - 2 hours $40.00."

No evidence was led before the taxing officer in respect of these contentious items; the taxing officer formed the opinion that the matters raised questions of principle in the taxation of bills of costs generally in bankruptcy…

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.

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Details

Case: [1981] FCA 46
Decision Date: 01 MAY 1981

CaseChat Overview and Summary

Les Dacey was the subject of a bankruptcy application by Chick & Kev Distributors Pty Ltd, a petitioning creditor. The dispute centred on the taxation of the bill of costs submitted by the petitioner's legal representatives. Specifically, the taxing officer had disallowed two claims: an allowance for a solicitor acting as counsel and for travelling time to and from court. The petitioner sought to review the taxing officer's decision, arguing that the officer had erred in principle.

The primary legal issue for the court was whether the taxing officer had indeed committed an error of principle by disallowing these two claims. The petitioner contended that the allowance for a solicitor acting as counsel should have been permitted, as there was no statutory prohibition against it, and that the disallowance of travelling time was inconsistent with established practice. The respondent, on the other hand, argued that the taxing officer's decisions were consistent with relevant legal principles and practice.

The court found that the taxing officer had not erred in principle. The court held that there was no basis in law or practice to permit an allowance for a solicitor acting as counsel, and that the disallowance of travelling time was in accordance with established practice. The petitioner's argument that the taxing officer's decisions were inconsistent with established practice was rejected by the court, which found that the officer had correctly applied the relevant principles. Consequently, the application to review the taxation of the bill of costs was dismissed.

Orders

Orders of the court

The application be dismissed.

Application dismissed.

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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