Re Devy, Andrew Laurence Ex Parte BBC Hardware Ltd - [1997] FCA 587

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
  No QP 619 of 1995
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

RE:ANDREW LAURENCE DEVY
Debtor
EX PARTE:BCC HARDWARE LIMITED
ACN 000 003 378 (formerly known as
Burns Philp Hardware Ltd

Judgment Creditor

S J GURNSEY & CO

Applicant

ANDREW LAURENCE DEVY

Respondent

CORAM:       Spender J
PLACE:         Brisbane
DATE:  24 June 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The notice of motion filed 13 May 1997 be dismissed.

The applicant on the motion pay the costs of the respondent to the motion, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
  No QP 619 of 1995
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

RE:ANDREW LAURENCE DEVY
Debtor
EX PARTE:BCC HARDWARE LIMITED
ACN 000 003 378 (formerly known as
Burns Philp Hardware Ltd

Judgment Creditor

S J GURNSEY & CO

Applicant

ANDREW LAURENCE DEVY

Respondent

CORAM:       Spender J
PLACE:         Brisbane
DATE:  24 June 1997

REASONS FOR JUDGMENT

A notice of motion filed on 13 May 1997 on behalf of S.J. Gurnsey and Company sought orders:
“1. That pursuant to Federal Court Rules O 62, r. 11 the decision of Registrar Allen (as a taxing officer) made on 29th April 1997 be reviewed.
2.That the Respondents Messrs Baker Johnson Solicitors pay the costs of and incidental to this Application.
3.Such further or other order or direction as this Court may deem [fit].”

Mr Devy was declared bankrupt on 12 December 1996 in respect of an act of bankruptcy which occurred on 28 October 1996.

The decision referred to in the notice of motion was the subject of reasons for decision of the Taxing Officer of the Federal Court, Mr Allen, dated 30 April 1997. On 18 June 1996, his Honour Hill J ordered that the applicant on a motion, Sally Gurnsey and Co, pay to Mr Devy his costs of successfully resisting an application for the substitution of a petitioning creditor. In relation to those proceedings, Baker Johnson appeared on Mr Devy's behalf.

It appears from Mr Allen's reasons for decision that a bill of costs was filed by Baker Johnson pursuant to the order of Hill J. On the taxation of those bill of costs, Baker Johnson sought to appear, but Sally Gurnsey and Co objected to Baker Johnson appearing.

Mr Allen records that the contention on behalf of Sally Gurnsey and Co was that “Baker Johnson have no instructions from Mr Devy's trustee in bankruptcy to appear, and all rights in respect of the order for costs have vested in the trustee in bankruptcy.”

He noted that “Baker Johnson venture no claim to be instructed by anyone, but appear in their own right as the possessors of a lien upon the costs.” Mr Allen noted:
“ I am concerned only with standing to appear upon the taxation and maintain a claim to items of costs to which objection…

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 Re Devy, Andrew Laurence Ex Parte BBC Hardware Ltd

Details

AGLC: Re Devy, Andrew Laurence Ex Parte BBC Hardware Ltd [1997] FCA 587
Case: [1997] FCA 587
Decision Date: 24 Jun 1997

CaseChat Overview and Summary

In the case of Re: Andrew Laurence Devy, the Federal Court of Australia was asked to review a decision made by the Taxing Officer regarding a bill of costs filed by Baker Johnson, who appeared on behalf of the bankrupt, Mr Devy. The applicant, S.J. Gurnsey and Co, sought an order to review the decision made by the Taxing Officer, Mr Allen, on 29 April 1997, as well as an order that the respondents, Baker Johnson, pay the costs of and incidental to the application. The case was heard by Spender J in Brisbane on 24 June 1997.

The legal issue before the court was whether Baker Johnson, who had appeared on behalf of Mr Devy in a previous matter, had standing to appear on the taxation of a bill of costs filed in relation to the current proceedings. The applicant argued that Baker Johnson did not have instructions from Mr Devy's trustee in bankruptcy to appear, and all rights in respect of the order for costs had vested in the trustee in bankruptcy. Baker Johnson, on the other hand, argued that they had a lien upon the costs and, therefore, had standing to appear on the taxation.

In reaching its decision, the court relied on a previous decision of the Full Court of the Federal Court in Worrell (as trustee of the estate of Wedgwood) v Power & Power (1993) 118 ALR 237. The Full Court had held that when a costs order was made in favour of a party, the solicitors for that party acquired equitable rights in the order, which arose by reason of their exertions. These rights were created forthwith on the making of the order and before the commencement of the relation-back period. In the context of this case, the court found that Baker Johnson had a right analogous to that of a present equitable assignment of the benefit of the costs order obtained by Mr Devy. This, in the court's opinion, gave them sufficient standing to appear in relation to the taxation of that costs order.

The court ordered that the motion be dismissed and that the respondents to the motion have their costs of the motion to be taxed, if not agreed.

Orders