Re Porter, A v Ex parte Strachan, J.F.

[1985] FCA 627

Re: ANTHONY PORTER
Ex Parte: JOHN FOSTER STRACHAN and DAVID GRAHAM THOMAS
No. 882 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Forster J.

CATCHWORDS

Bankruptcy - costs - absconding debtor's warrant - whether creditors entitled to costs - debtor arrested in Sydney - whether conduct of creditors unreasonable so as to preclude them from having costs of and incidental to return of debtor from Sydney to Adelaide.

HEARING

ADELAIDE
#DATE 28:11:1985

ORDER

The debtor pay the costs of the creditors of and incidental to the warrant of arrest including the return of the debtor to Adelaide, those costs to be taxed.

Out of the sum of $1,500-00 held in the trust account of the debtor's solicitors there be paid to Australian Government Solicitor the sum of $606-90 for payment to the Australian Federal Police.

The balance of the said sum is to await the result of the taxation of the creditors' costs.

The costs of today are to be included in the costs to be paid by the debtor.

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

JUDGE1

In this matter the creditors obtained from this court the issue of an absconding debtor's warrant under the Bankruptcy Act to arrest the debtor upon the footing that he was leaving the jurisdiction for the purpose of avoiding paying the judgment debt owing to them. I now have to consider the question as to whether the creditors should be paid the costs of their proceedings, that is to say the costs of the issue of the warrant and the costs of the return of the debtor together with an escorting police officer from Sydney to Adelaide in obedience to the warrant.

1. It is argued by Mr Martin for the debtor that whereas it may be that the creditors should have the costs up to and including the issue of the warrant, that they should not have the costs of the return of the debtor from Sydney to Adelaide. It seems to me, however, and this emerges - emerged really during the discussions I had with Mr Martin when he was addressing me, that once the warrant was issued unless there was some firm and absolute payment of the money here, not just an undertaking to pay it, or I will probably pay it, or I will get it somewhere, unless the money was actually paid here it cannot be fairly said that the creditors were unreasonable in not attempting to stop the execution of the warrant and the return of the debtor to Adelaide.

2. Nothing has been shown which satisfies me that the conduct of the creditors was unreasonable. Hard it might have been, in fact it was, but unreasonable and improper, in my view, it was not, and I think also that the debtor will have to pay the costs of his return to Adelaide and the incidental costs of the trip by a Commonwealth police officer because the warrant having been issued, if the warrant was rightly issued, as I think it was, the debtor's return to Adelaide followed almost inevitably.

3. I order that out of the sum of $1,500 held in the trust account of Bowen, Paine, Morris and Company, the solicitors for the debtor, the sum of $606-90 be paid out to the Australian Government Solicitors for payment to the Australian Federal Police and that the balance await the result of the taxation of costs - of the creditors' costs - and that the costs of today's proceedings are to be included in the costs to be paid by the debtor to the creditors.