FEDERAL COURT OF AUSTRALIA
Renet v Owner – Strata Plan SP22143 (Costs) [2023] FCA 821
Appeal from: The Owner - Strata Plan SP22143 v Renet [2022] FedCFamC2G 953 File number: ACD 58 of 2022 Judgment of: RAPER J Date of judgment: 20 July 2023 Catchwords: COSTS – appeal dismissed – appeal from a decision of the Federal Circuit and Family Court of Australia dismissing an application for review of a Registrar’s orders – where Registrar made sequestration order against the estate of the appellant Legislation: Federal Court of Australia Act 1976 (Cth) ss 43, 43(3)(d)
Federal Court Rules 2011 (Cth) rr 40.02(b), 40.30(b), Sch 3 Items 1.3, 2.1, 2.2, 2.4, 3.3, 8.1, 19.1
Cases cited: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246; 151 ACSR 26
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Hamod v New South Wales [2002] FCA 424; 188 ALR 659
Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261
Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403
Pekar v Holden (No 2) [2021] FCA 343
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Renet v The Owner – Strata Plan SP 22143 [2023] FCA 631
Seven Network Ltd v News Ltd [2007] FCA 2059
Wills v Chief Executive Officer of the Australian Skills Quality Authority(Costs) [2022] FCAFC 43
Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 33 Date of last submissions: 30 June 2023 Date of hearing: Determined on the papers Counsel for the Appellant: Mr Renet appeared in person Solicitors for the Respondent: Mr T Nicolaidis of Baker Deane & Nutt ORDERS
ACD 58 of 2022 BETWEEN: MARK RENET
Appellant
AND: THE OWNER - STRATA PLAN SP22143
Respondent
ORDER MADE BY:
RAPER J
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs of the application on a solicitor and client basis, in the sum of $4,563.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RAPER J
In Renet v The Owner – Strata Plan SP 22143 [2023] FCA 631 I ordered that the appeal be dismissed. I was unable to discern any error in the primary judge’s reasons for concluding that the sequestration order ought to be set aside.
Both the appellant (Mr Renet) and the respondent, The Owner – Strata Plan SP22143 (the Strata Plan), sought to be heard on the question of costs but where the parties agreed that the issue could be determined on the papers.
The Strata Plan sought orders requiring Mr Renet to pay its costs on an indemnity basis by reason…
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- Case
- [2023] FCA 821
- Decision Date
CaseChat Overview and Summary
The Court reviewed the grounds of appeal presented by Mr Renet, which included claims of breaches of settlement terms, fraudulent charges, and errors in the account. The Court found that Mr Renet had not succeeded in establishing any of these grounds. The submissions were largely repetitive of previous unsuccessful arguments and did not provide a basis for overturning the original decision. The Court held that Mr Renet had failed to make out his grounds of appeal, and therefore, the ordinary principle of costs should apply. As a result, the Court ordered that Mr Renet should pay the Strata Plan's costs of the appeal.
Given the findings, the Court concluded that Mr Renet should be ordered to pay the Strata Plan's costs of the appeal in the sum of $4,563. The Court's decision was based on the unsuccessful nature of the appeal and the absence of any exceptional circumstances that would warrant a departure from the usual costs order. The Court's reasoning was grounded in the statutory power to order costs under section 43 of the Federal Court of Australia Act 1976 (Cth) and the ordinary practice of the Court that an unsuccessful party should bear the costs of the successful party on a party and party basis.
Orders
Orders of the court
1. The appellant pay the respondent’s costs of the application on a solicitor and client basis, in the sum of $4,563.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Renet made further submissions on 29 June 2023 (which repeated largely, his unsuccessful bases for appeal with apparent reference to the primary judge’s orders and/or reasons by “item”):1.In relation to Item 3 or respondent indemnity voids any further fees or charges by respondent, in accordance with failure to comply with settlement in 2017 & further more violates terms of indemnity by charging cost for charging as an indemnity cost.2.Refute to item 6. Not liable due to breach of settlement. There [sic] failure to ammend [sic] account which has reoccuring [sic] value after settlement & in breach of the strata scheme management act 2015 under section 85(5).3.All items under item 11 of respondent are rejected for there [sic] failure for compliance with terms of settement [sic] from 2017 & have failed to reach a term of settlement to comply!4.Orders for transcript must be obtained from both hearings for CAG2/2022 & ACD58/2022 as this will clearly indicate terms for settlement with provided value of payment to reach settlement.5.There was no contention during hearing to discontinue from principle [sic] grounds to conclude with settement [sic] as I have proposed to close the case & I have addressed meeting terms of settlement with the other party in occordence [sic] with my account, as there [sic] account is fraudulent & violates the terms of settlement already made in 2017.…In address to final basis:Item 1 (b) value is unsubstantiated.Item 3. Reject sum for costs of respondent as this is under a fraudulent basis (see appeal item 2 – in addition to previous submission, in addition to attachment orders [2 of 5]). In addition to being rewarded costs as appealant [sic] (see attachment orders [3 of 5]).Item 6 – 2. Reject sum for costs of respondent as this is under a fraudulent basis (see appeal item 2 – in addition to previous submission, in addition to attachment orders [2 of 5]).Item 11B -4 (b) Matter remained unresolved to 27th May 2022. Further address to the matter was for finalisation settlement in August 2022, where respondent refused to reach settlement.Item 12 John Okeefe tried to resolve a settlement yet the opposition declined. Balance listed is false. A total itemised account has been attached. Less legal fees, would leave a total of $4774.20 to be paid in full. Further expense has been incurred, to be submitted (pending) for reduction of this value.Item 35 Further states false value for incorrect date. To revoke decision as unsubstantiated.Item 51 Not merited as respondent is in violation of fraudulent charges as listed in there incoherent account.ConsiderationShould a costs order be made in the Strata Plan’s favour? The Court is conferred jurisdiction to order costs by s 43 of the Federal Court of Australia Act 1976 (Cth). The power is broad and the discretion so conferred informed by the ordinary practice of this Court that an unsuccessful party usually is required to the costs of the successful party on a party and party basis: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 at 152 (per Black CJ) and 156–157 (per Cooper and Merkel JJ). Such a course is not departed from unless the justice of the particular case warrants departure.