Re Kerrisk, P.W. Ex parte Harkness, C.O v Deputy Commissioner of Taxation
[1994] FCA 609
•26 Aug 1994
k 1 ' : :/, -9 , . -<<>,!&&l- (0 F, 609 9k
JUDGMENT No. 2 .,-,,,.
EX PARTE: Colin Oliver m E S S
(Applicant) . - -
DeDutv C r e - of TaxaLim (Respondent)
Spender J
26 August 1994
Brisbane
the matter be remitted to the taxing officer for
further consideration, with such further materialand submissions as may be appropriate.
the coats of the application be reserved.
to have the matter mentioned on five working daysv
notice by one party to the other.
m: Settlement and entry of orders is dealt with in
Rule 124 of the m ~ t c v Rulm.
RECEIVED
--. _ 1 No. QX102 of 1992
TCY DISTRICT OF )
- 1
RE : fa debt- EX PARTE: u n Oliver - (Applicant)
Deoutv Commissioner of !bxuUn (Respondent)
ix!Eiu: Spender J.
ab!x: Brisbane
L!lbm: 26 August 1994
This is an application by Mr Colin Harkness, a
solicitor of Wilson, Ryan 6 Grose, in Townsville, who had
consented to act under S. 188 of the W o t c v && 1966 ('the
Act') for Mr Patrick William Kerrisk. The applicant seeks an
order :
" that the decision of Deputy District Registrar
Allan dated 1st September 1993 ruling that a
consenting solicitors costs irrespective of the Creditor may call for the taxation of a actions of the trustee or that solicitor be
reviewed and overturned. "
In mid-1992 Mr Kerrisk ('the debtor') approached the appliqlat-to assist him in seeking an arrangement under Part X
\
? a
of , t ~ B ' ~ t c v Act 1966 ( 'the Act'), as provided for by S.
, I
1881-4f tbq,:Ac$, which relevantly provides : 4 * A debtor who desires that his affairs be dealt
with under this Part without his estate being
sequestrated and:
(a)
is personally present or ordinarily resident in Australia;
. . . (c)
is carrying on business in Australia, either personally or by means of an agent or manager;
. . . may sign an authority in accordance with the
prescribed form:
. . .
(f) authorising a solicitor to call a meeting of his creditors. "
On 1 September 1992 a form containing an authorisation to the applicant to act pursuant to a. 188 and a consent by the applicant to so act were filed. On 10 September 1992 a meeting of creditors ('the meeting') called by the applicant was held at the Townsville Rugby League Club. At that meeting, a special resolution was passed unanimously by all creditors present in person or by proxy and who voted, that the debtor be required to execute a deed of arrangement under Part 10 of the Act in accordance with the deed of
notice of the meeting. That meeting also elected k f r Rose arrangement which had been circulated to creditors with the Andrew Duus as trustee ('the trustee') as required by S. 204(4) of the Act. On 23 September 1992 the deed of
arrangement was executed.
Clause 24 of the deed of arrangement provided:
That the remuneration of the consenting Solicitor be fixed at the sum of 3-such sum to include all outlays necessarily incurred including but not limited to Court filing fees, Accountancy fees for preparation of Debtor's statement of accounts, cost for assisting in preparation of Deed and attending meeting of creditors, advertising costs, photocopying, facsimile and incidental costs and be payable in accordance with section 109 of the Act. "
The amount of $14,123.36 was inserted by handwriting into a draft deed of arrangement, prior to the vote by the creditors on the deed of arrangement. Paragraph 24 of the minutes of
the meeting detail the events of the meeting :
" The President then moved to the draft LJeed that had been circulated to all creditors and advised that the date 24 September 1992 should
be inserted at Clause 17(2) and that the
Consenting Soli cf tor's costs of $14,123.36 was
to be inserted. P-
e receiv-, " (my emphasis)
Prior to the meeting of 10 September 1992, no
notice of the amount of $14,123.36 or any other amount
wan given to the creditors and, in particular, no amount
wan inserted in the document which accompanied Form 34.
The text of the resolution that was in fact
passed at the meeting of 10 September was:
" That the debtor be required to execute a deed
of arrangement under Part X of the Act in accordance with the deed of arrangement circulated to creditors. "
That resolution, in my opinion, makes no reference
to nor could not be construed as a special resolution of all
creditors that the solicitor's costs be paid without taxation.
A bill in taxable form was prepared by the applicant to recover costs for acting as such and filed with the registry in early November 1992. The taxation of this bill of costs was adjourned on two occasions due to time constraints.
The taxation was eventually set down for 16 April
1993. Prior to that date, a Deputy District Registrar acting
as the taxing officer ( 'the taxing officer') took the step of
informing the Australian Government Solicitor, solicitors for the Deputy Commissioner of Taxation ('the Deputy Commissioner') who is one of the creditors of the debtor, that the taxation was to occur. It is unclear whether all creditors were so informed, but it appears that one other creditor, Sireck Pty Ltd, appeared at the taxation.
At the taxation on 16 April 1993, Mr Duffy, an employee of the firm of which the consenting solicitor is a partner, submitted that the Deputy Commissioner as a creditor had no right of audience at the taxation and asked the taxing officer to rule on the preliminary question as to whether a creditor had a right of audience at the taxation.
The taxing officer's decision, given on 23 April 1993, ruled that the Deputy Commissioner and any other creditor had a right to be heard at the taxation and directed that:
1. the applicant serve a copy of his bill of costs upon each creditor; and
2. the applicant advise each creditor to file with the Deputy District Registrar a list of objections to the bill within 21 days.
The taxing officer, in coming to this view, referred to
66 ALR 173 at 179, where Sheppard J said:
" I have been asked t o s a y something about the
procedure which d e s i r a b l y be followwd by the Reg i s t rar i n s i m i l a r cases . In my opinion, i t
w i l l always be des irable for Reg i s t rars f i x i n g
remuneration to n o t i f y p a r t i e s , whether
t r u s t e e s , debtors o r c r e d i t o r s , l ikely t o be
a f f e c t e d by the f i x a t i o n , o f the da te , time and
place, when and where the f i x a t i o n i s to occur,
and i n v i t e the persons n o t i f i e d t o make submissions i f they so d e s i r e . I do n o t s a y
t h a t the r e g i s t r a r i s o b l i g e d t o a f f o r d an
oppor tun i t y o f making ora l submissions i n a l l
cases . Each case w i l l depend on i t s own
circumstances . But, a s the Regis t rar ' s proposed procedure acknowledges, i t i s
important t h a t n o t i c e o f the d a t e when the
f i x a t i o n i s to take p lace be given and t h a t
oppor tun i t y o f making submissions o r l ead ing
ev idence be c l e a r l y a f f o r d e d . " No appeal has been brought against that decision.
In May 1993, the taxation was again adjourned, this time at the request of the Australian Government Solicitor. The taxation was then set down for 6 August 1993.
The applicant subsequently filed a new b i l l o f
costs, such b i l l to be taxed on 6 August 1 9 9 3 . However, on 5
August 1 9 9 3 , the applicant sought from the registry, and obtained, a further adjournment of the taxation. The let ter seeking that adjournment states, so far as i s relevant:
" At the meeting o f creditors in September, 1992,
as consenting solicitor as a priority under the creditors resolved to pay this firm's costs section 109 of the Bankru~tcv Act 1966. The
bill of Costs has been submitted for taxation for the purpose o f securing a priority payment recent adjournment o f the taxation a meeting of under S . 109(1) (b) o f t h a t Act. Since the most creditors has been held a t which our Mr
Harkness indicated that this f i r m would be seeking payment o f our costs under S . 109 ( l ) ( j ) required. The trustee has indicated his o f the Act in which event taxation would not be intention to so pay these costs subject to any comments which the Official Receiver may have upon the matter. To date no response has been received fram the
Official Receiver.
incursion [s ic] o f further expenses by the In view of the above and in order to a m i d the estate, we request that you confirm by return facsimile that the taxation set down for Friday 6th August 1993 w i l l be adjourned to a date to
be fixed. Upon receipt o f the Trustee's final advices upon the above matters, we w i l l contact you forthwith.
The adjournment was granted but on the basis of written submissions on the issues raised i n the paragraphs quoted above be submitted by the applicant and any interested creditors.
Submissions were made by the applicant and the
Australian Government Solicitor and the taxing o f f i cer ' s
decision was given on 1 September 1993. The taxing officer
decided to refuse the request for an adjournment.
The taxing officer informed the applicant of his reasons for his decision by letter which I set out:
* Jhar sirs
RE: PART X NO. 102 OF 1992 - PATRICX WIUIAU XBRRISX I refer to your letter of 20 August 1993 and t h a a you for your contention#.
I refer to paragraph 2908 [sic - page] of XcDonald Henry and Meek -
the Act is not entitled to payment out of the ootate. " "A SOlicitor who dmEimtS a dabtor to C- within the ptovimion~ Of Th. solicitor who calls a Section 188 meeting or a controlling trust- acts in a statutory capacity. Hie costs of doing W a m neither a liability of the dobtor nor of the croditorm, but are mubjoct to a mtatutory right of recoupnent. Apart from statute, the comts of a trumtee or a controlling trustcn are not the permonal liability of the debtor or bankrupt, but atu a chargo upon trumt ammet..
The m.w applies to a molicitor calling a Section 188 meting. Accordingly, the molicitor in not a "creditor' of the dobtor within
the waning of sub-aection 109(1)(j)(i). Ae to mub section 109 (1) (j) (if), I apply the maxim goneralia epncialbus non derogant, an r means of statutory conmtruction and rule that the mpcific provision for taxation of a consenting solicitor'm comtm in sub
.rctian 109(l)(b) ucludam the later general provimion.I further rule that a creditor may call for the taxation of a coasenting molicitor'e comtm irre#pnctiw of the actions of the trustw or that molicitor. The trustee p r o c d m to pay that bill without taxation at him peril.
A further data for the taxation will ehortly be appointd. "
On the hearing of this application, and subsequently confirmed by affidavit material directed to be filed, the Court was informed that the applicant had already been paid his costs by the trustee, the trustee purporting to rely on S.
The real question behind this application is the Deputy Commissioner's contention that the trustee was not entitled to make the payment as he did, that a creditor is entitled to insist on taxation of the consenting solicitor's costs, and is entitled to be heard on that taxation.
The taxing officer appears to agree with at least the last two of those contentions. The applicant contends that he is entitled to be paid under S. lOl(j)(i). Presumably the trustee is of the same view, but he was not sought by either the applicant or the Deputy Commissioner to be made a party to these proceedings and as a consequence has not been heard.
In those circumstances, the formulation of the order nought in the application obfuscates what really are the points in contention.
Section 167(8) provides:
" A person i n t e r e s t e d may appeal t o the Court
from a dec i s ion of t h e tax ing o f f i c e r i n
al lowing o r d i sa l lowing a bill of c o s t s o r bill
o f charges o r an item i n such a b i l l . "
The terms of this sub-section show that it is inapplicable here, as there has as yet been no decision
"al lowing o r disal lowing" items on a bill of costs.
Section 14(5) provides:
" An order or direction made or given, or an act
done, by a Registrar or a Deputy Registrar under this Act i s subject to review on summary application to the Court. "
A review under S. 14(5) is a review in the nature of a rehearing, rather than an appeal involving "no more than
considering, in accordance with the principles i n m v.
(1936) 55 CLR 499, whether the Registrar's exercise o f discretion has miscarried":
n - Ptv Ltd 35 FCR 506 at p. 511.
Kitto J in U g n Coal U l e w v e e s '
Federation v. (1956) 94 CLR 621, adopted (at 628) the statement of Jordan CJ in S C ~ W ~ D D ~ S ' LtQ v. m (1934) 34 SR(NSW) 178 where Jordan CJ stated:
" In appeals as to costs, the principles to be
applied are these. The Court w i l l always review a decision of a Taxing Officer where it i s contended that he has proceeded upon a wrong principle, for the purpose o f determining a principle should be applied; and an error in
principle may occur both i n determining whether an i t e m should be allow& and i n detexmining
how much should be allowed. Where no principle
i s involved, and the question i s whether the
which he possesses and i s purporting to Taxing Officer correctly exercised a discretion exercise, the Court i s reluctant to interfere. I t has in that jurisdiction to review the
exercise o f discretion only i s involved, and w i l l do so freely on a proper case using i t s Taxing Officer's decision even where an own knowledge o f the circumstance: H -
AldStralfan v* - ; !xax& a l t & CO, v. L;
bu t it w i l l i n general interfere only where the discretion appears not to have been exercised a t a l l , or to have been exercised i n a manner
extreme case. " i s one of amount only, w i l l do so only in an which i s manifestly wrong; and where the case
In my opinion, the applicant may rely on s. 1 4 ( 5 ) to seek review of the taxing officer's decision to refuse to adjourn the taxation proceedings.
Section 1 6 7 ( 9 ) provides:
" In this s e c t i o n , ' t a x i n g o f f i c e r ' means a Regis t rar o r Deputy Reg i s t rar or a person
authorised i n w r i t i n g by a Regis t rar , w i th the approval of the Court or the Inspector-General,
t o exercise the powers and perfonn thefunc t ions o f the tax ing of f icer . "
The Deputy Registrar's powers as taxing officer are
powers conferred by the Act and his acts as taxing officer are
acts "done under this Act" . The authorities cited with
respect to the nature of review of a taxing officer's decision relate to the review of the taxing officer's allocatur rather than decisions in relation to procedural issues on the taxation.
The observations of Jordan CJ outlined earlier refer
to an error in principle occurring "both i n determining
whether an i t e m should be allowed and i n determining how much should be allowedm. Similarly, the discussion by Kitto J in
le Em~lovees' Federation is clearly
focussed on circumstances of review of the allocatur. Those
considertions are relevant to an "appeal" from the allocatur
provided for by s. 1 6 7 ( 8 ) .
In my view, s. 14(5) of the Act is wide enough to
permit review of a procedural decision or order by a Registrar
or District Registrar acting as a taxing officer.
The first question between the respondent and the applicant concerns the applicant's entitlement to rely on either S. 109(l)(j) and 8 . 109(l)(b)(ii) in respect of the payment for costs incurred in acting pursuant to S. 188 authorisation.
Section 109(1) provides, so far as is relevant:
" (1) Subject to this Act, the Trustee must,
before applying the proceeds of the property of the bankrupt in making any other payments, apply those proceeds in the following order:
. . .
(b) second, in the case of a bankrupt who had, before the date of the bankruptcy, signed an authority under S. 188, in payment of: . . .
(if) if the authority was given to a solicitor - any taxed costs due to the solicitor in respect of services rendered by him in relation to the authority;
. . . (j) ninth, in payment of:
(i ) such preferences, priorities or advantages in favour of any creditor or group of creditors as regards as any other creditor or p u p of creditors; and (if) such costs, charges and expenses incurred in the interests of creditors before the date of the bankruptcy;
as a meeting of the creditors, by special
resolution, resolves. "
The respondent referred to p. 2908 of v
M e "Australian Bankruptcy Law and Practice" (5th Ed.)
which states;
" Semble, under t h e scheme o f t h i s A c t , a
s o l i c i t o r who a s s i s t s a deb tor i n coming under
the provis ions o f the A c t i s not e n t i t l e d to
any payment out of t h e e s t a t e . "
This statement provided the basis for the finding by the taxing officer that the a. 188 solicitor is not a creditor of a debtor and therefore cannot take advantage of S. lOg(l)(j)(i). The taxing officer, in referring to this
passage , omitted any reference to "semble".
Contrary to the qualified view of the learned authors, I do not accept that the S. 188 solicitor may not be a creditor of the debtor. A 8. 188 solicitor renders a service at the request of the debtor, and incurs expenses in that regard. An obligation to pay the reasonable costs of those services and reimburse those expenses is to be inferred
the reaaonable amount for those services and expenses would be against the debtor in those circumstances, and in my opinion, provable in the estate of the debtor.
In my opinion, the consenting solicitor is a
creditor to that amount.
Further, S. 109(l) (b) provided a mechanism by which
such a solicitor can receive priority in respect of his claim against the estate of the debtor. Section 109(l)(b) itself is a telling reason why it is wrong to say that a solicitor is not entitled to any payment out of the estate. Any consideration of priority assumes a primary entitlement to payment. That priority can be achieved only on taxation, and then only to the amount of the taxation. Unless the solicitor chose to have the costs taxed, the solicitor would not have the benefit of the statutory priority that S. 109(l)(b) affords.
There is, however, no obligation on such a solicitor
to have his costs taxed, and in my view the taxing officer was
wrong to conclude that "a creditor may ca l l fo r the taxation
o f a consenting so l i c i to r ' s costs i rrespect ive o f the actions o f the trustee or that s o l i c i t o r " . If a consenting solicitor
seeks to have his costs taxed, then a creditor has a right to be heard on that taxation: Scott. However, a creditor can not require taxation of a consenting solicitorws costs.
Further, in my opinion, S. 109(l)(j)(i) was, prior to the enactment of S. 109(l)(b)(ii) (which was inserted by the -tnAct 1980), available to a solicitor acting pursuant to a s. 188 authority ('the S. 188 solicitor')
seeking some higher priority than that of a mere unsecured
creditor.
The respondent submits, however, that, even if this was the case prior to the introduction of S. 109(l)(b)(ii), the introduction of that section impliedly repealed that alternative. The respondent relies upon the maxim "Expressun facit cessare tacitun", namely, that an enactment in affirmative words pointing to a course to be followed may be understood as importing a negative, namely that the same
matter is not to be done according to some other courser The
v. (1949) 78 CLR 529 at 551; Harm v.
h Allied Trades Unipn of Aus- (1932)
47 CLR 1. The respondent submits that if previously the costs of the S. 188 solicitor were able to be recovered under
S. 109(1)(j)(i), the introduction of S. 109(l)(b)(ii)
indicates the legislature intended to change the procedure.
I do not accept those submissions. Section 109(l)(b) provides a mechanism for high priority to be given to the claim of a consenting solicitor, on taxation of such solicitorvs costs. This is not inconsistent with the possibility that a later meeting of creditors might give some priority to the claims of that solicitor by special
on the estate of the debtor. It is not directed at bringing resolution. Section 109 is directed to the priority of claims claime into existence. In my view, the fact that a certain priority might be achieved if a consenting solicitor has his costs taxed does not mean that unless he chooses to have his costs taxed, he has no claim on the estate of the debtor.
The further questions thrown up by this application are complicated by ambiguity in the stance of the applicant. In an affidavit of Mr Harkness sworn 18 October 1993, he refers to the special resolution passed unanimously that the debtor be required to execute a deed of arrangement in accordance with the deed of arrangement circulated to creditors at the meeting on 10 September 1992. That deed was executed on 23 September 1992 and specific reference is made to clause 24 of the deed earlier set out and to S. 109 of the
-SMr Harkness says that no sub-section of
S. 109 is specified in the deed. In the affidavit of 18 October 1993, he says:
" On or about 22nd July, 1993 discussions wwre
held between myself and Mr Ross Duus, o f Xrnst
Fielding o f Xrnst & Young and Mr Keith Kern of Boulton Cleary & Kern as Solicitors for the 6 Young as Trustee o f the debtor, Mr Andrew Trustee. A t that Meeting the Trustee indicated a preparedness to pay my costs as a priority under Section 109(l) ( j ) of the m ~ t c v Ace
Receiver may have had as to whether or not such subject to any comments which the Of f ic i a1 a payment was in order. "
On 29 July 1993, Wilson Ryan h Grose wrote to the
solicitors for the trustee stating, inter alias
" Clause 24 o f the d r a f t deed authorises payment of the consenting solicitor's costs in accordance with S . 109 of the Act.
The creditors therefore received notice that a t the meeting, i f the Debtor was required to
considered and set. " of the consenting solicitor would also be enter into the deed, then payment o f the costs
The letter noted that it was not possible to quantify the costs at the time the draft deed was circulated prior to the meeting of 10 September, but the letter claims that the a. 1898 statement to creditors gave them notice that they would have power to specify provisions to be included in the deed (such as the precise amount for the consenting solicitor's remuneration). The letter continued:
" No fore specific notice could have been drafted and circulated to creditors to comply with the
provisi on8 of S. 109 (7). . . "
The letter ingenuously claims that specific notice of the amount to be inserted in clause 24 was "implicitly achieved by virtue of the material which was circulated to all creditors prior to the meeting". After referring to the taxation set down for 6 August, the letter concluded:
"
. . .would you please confirm by return facsimile that it is the trustee's intention to pay the costs of the consenting solicitor as a priority
under 8. 109(l)(j)(i) or 109(l)(j)(ii). "
On 27 September 1993, a partner of the trustee wrote
on his behalf to Meesrs Wilson Ryan h Grose, which letter said
in part:
" Pursuant to S. 109(l) (j) of the m t c v Act and to a special resolution approving the deed of arrangement passed at the meeting of creditors held on 10 September 1992, I now enclose a cheque in the sum of $14,123.36 in full and final settlement of your costs. "
Section 109(7),(8) and (9) provides:
" ( 7 ) A spec ia l r e s o l u t i o n s h a l l n o t be deemed to
have been d u l y passed for the purposes o f paragraph ( l ) ( j ) un less the n o t i c e convening the meet ing a t which i t was passed contained a
copy o f the proposed r e s o l u t i o n .
( 8 ) A payment s h a l l no t be made under paragraph
( 1 ) ( j ) u n t i l 28 days a f t e r :
( a ) a c e r t i f i c a t e t h a t the notice convening
bankrupt and t o each person shown a s a the meet ing was d u l y forwarded t o the
c r e d i t o r i n the s tatement o f a f f a i r s ; and
(b) a copy o f the special r e s o l u t i o n ;
have been f i l e d i n the o f f i ce o f the Regis t rar .
e x p i r a t i o n o f the period r e f e r r e d to i n ( 9 ) The bankrupt or a creditor may, before the
subsec t ion ( E ) , apply t o the Court t o reverse
or v a r y t h e dec i s ion o f the c r e d i t o r s and the
Court may, upon the a p p l i c a t i o n , make such
order a s i t thinks proper. "
In my opinion, it is clear that the special resolution by the creditors at the meeting of 10 September 1992 was not a special resolution by them resolving a preference, priority, or advantage in favour of the consenting solicitor, nor a resolution about the payment of such costs, charges, or expenses incurred in the interests of creditors
before the date of the bankruptcy, of which S. 109(l)(j) speaks. It is clear also that there was no compliance with S . 109(7) and that the payment did not comply with 8. 109(8) because it was not made 28 days after a copy of the special
resolution had been filed in the office of the Registrar.The present claim that the resolution requiring the debtor to execute the draft deed of arrangement constituted a resolution by the creditors pursuant to s. 109(l)(j) in my view cannot stand with the statements by the chairman of the meeting as recorded in the minutes concerning the requirement for taxation.
So much seems to have been recognised at an earlier
stage by the applicant. In the letter to the Registrar of 5August 1993, Wilson, Ryan & Grose stated:
" Since the m a t recent adjournment of the taxation, a meeting of creditors has been held
a t which our Mr Harkness indicated that this f i r m would be seeking payment o f our costs under S . 109(1) ( j ) o f the Act, i n which event taxation would not be required. "
Tpro things are important about the sentence. The first is the
reference to a meeting of creditors after the most recent adjournment of the taxation, which clearly is a meeting of creditors which is not the meeting of 10 September 1992. Secondly, the indication referred to in the sentence is that
the firm " m u l d be see- payment of our costs under S .
109( l ) ( j ) o f the Act", which at least on one view, indicates a
proposal that a special resolution would be put at a later
date to a meeting of creditors for their consideration.
In an affidavit, Anthony Denis Collins on behalf of the Deputy Commissioner of Taxation, said:
" On the Twenty second day of July 1993, I attended a further meeting o f creditors held a t the Townsville o f f i c e o f the trustee, Messrs Brnst 6 Young, 62 Walker Street, Townsville. A t that meeting the consenting solicitor indicated that he intended to withdraw the bill
o f costs which was presently before the taxing o f f icer of the Federal Court in Brisbane and proceed under section 109(1) (1) of the Act by putting a special resolution to creditors that that his costs be paid in priority pursuant to
that subsection. "
That account of the intentions of the consenting solicitor is inconsistent with what is now asserted on his behalf as to what occurred at the meeting of 10 September 1992, namely, that at that meeting there was a a. 109(l)(j) special resolution by the creditors.
The question of whether a party who has sought taxation of a bill of costs might withdraw the request to have the bill taxed, or alternatively, might seek the indefinite adjournment of the taxation of those costs, was not the subject of eubmissions before the taxing officer and, a fortiori, of a ruling by him. If the reality of the applicant's position is that he is seeking to withdraw his claim for taxation or have it indefinitely postponed so as to be able to pursue a special resolution by the creditors at a future meeting concerning his costs, that was not made plain
and further, there was no consideration given to the rights as to the taxing officer nor was it the subject of his decision, to costs, if there be any such right, of creditors who had
sought to be heard on the taxation.
As to the payment made on 27 September 1993 by the
trustee, S. 167(1) provides:
" Subject to subsection ( 2 ) , all bills of costs
of a solicitor and bills of charges of an
accountant, auctioneer, manager or other person (not being a trustee or a person exclusively employed by a trustee) rendered in respect of the estate of a bankrupt shall be taxed by a taxing officer and no payments in respect of such costs or charges shall be allowed in the trustee's accounts unless they have been so taxed. "
Section 167(2) provides in part:
" Subsection (1) does not require a bill of costs or a bill or charges to be taxed if:
S . .
(c) the bill has been taxed by an officer of any court; or (d) the creditors have, by special resolution, authorized payment of the bill.
It does not seem to me that the claims of the consenting eolicitor the subject of the present application can properly be described as a bill of coets of a solicitor
"rendered in respect of the estate" of a [debtor].
Finally, S. 179 of the Act provides:
" (1) The Court may, on the application of the
Registrar, the Inspector-General , a creditor or the bankrupt, inquire into the conduct of a
one or both of the followingr- trustee in relation to a bankruptcy and may do (b) make such order as it thinks proper. " (a) remove the trustee from office; and
It is apparent from the above reasons that further consideration has to be given by the parties to the question of taxation before the taxing officer and to the question of whether an adjournment is sought so as to enable a meeting of creditors to consider the passing of a special resolution
2 1
concerning the payment of the consenting solicitor's costs and whether the consenting solicitor intends not to pursue any taxation of his costs.
In all the circumstances, I simply remit the matter to the Registrar for further consideration, with such further material and submissions as may be appropriate. I will reserve the costs of the application and grant liberty to have this matter mentioned on five working days' notice by one party to the other.
I certify that this and the
preceding twenty (20) pages are a true copy of the reasons for judgment herein o f the Honourable Hr Justice Spender.
Date: 26 August 1994
Solicitor for the applicant* Mr P. J. Duffy of Wilson Ryan 6
Grose
Counsel for the respondent: Mr F. J. Toy instructed by: Australian Government Solicitor Date of Hearing: l1 October 1993
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