Re Jorgensen, Alan Bradley; Madgwicks v Jorgensen, Alan Bradley

[1998] FCA 678

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QX 154  of   1996

RE:

EX PARTE:

ALAN BRADLEY JORGENSEN

MADGWICKS
Applicant

AND:

ALAN BRADLEY JORGENSEN
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

10 JUNE 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. There be no order as to costs against Custom Credit Corporation Ltd.

2. The applicant pay two-thirds of the costs of the respondent, including reserved costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QX 154 of 1996

RE:

EX PARTE:

ALAN BRADLEY JORGENSEN

MADGWICKS
Applicant

AND:

ALAN BRADLEY JORGENSEN
Respondent

JUDGE:	SPENDER J
DATE:	10 JUNE 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

On 29 April 1998 I dismissed an application by Madgwicks and Custom Credit Corporation Ltd to have a composition set aside.  Custom Credit Corporation Ltd was joined as a second applicant on the second day of the hearing in order to meet a challenge to the standing of Madgwicks as a creditor to bring the application.  On 29 April, I indicated my provisional view that having regard to a number of matters, particularly the failure by Mr Jorgensen on the question of standing, I proposed to order Madgwicks pay half of Mr Jorgensen’s costs.  I invited written submissions on the question of costs, which have been received.

I have had regard to those submissions.  I do not accept that had Madgwicks been aware earlier of affidavit material from a number of creditors, they might not have persisted in their application.

The ordinary rule is that costs follow the event, although the court has a discretion to make an alternative order.  I think that the question of the debtor/creditor relationship between the respondent and Madgwicks was a significant part of the application, and Mr Jorgensen’s failure in that regard ought to be recognised by making other than the ordinary order.  On reflection, however, my initial view of a 50 percent reduction is too generous to the applicant Madgwicks.  I make no order as to costs against Custom Credit, and order that Madgwicks pay two-thirds of the costs of the respondent, including reserved costs, those costs to be taxed if not agreed.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             10 June 1998

Counsel for the Applicant:	Mr M Gynther
Solicitor for the Applicant:	Madgwicks
Counsel for the Respondent:	Mr P P McQuade
Solicitor for the Respondent:	McHenry & Company
Written submissions on costs	By 13 May 1998
Date of Judgment on costs:	10 June 1998